State Consumer Disputes Redressal Commission
Great Eastern Trading Co. vs Mr. Tapas Chatterjee on 20 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/874/2016 (Arisen out of Order Dated 22/08/2016 in Case No. Complaint Case No. CC/129/2015 of District Hooghly) 1. Great Eastern Trading Co. 15, G.T. Road, Khadinamore, Chinsurah, Dist. - Hooghly. ...........Appellant(s) Versus 1. Mr. Tapas Chatterjee S/o Mriganka Sankar Chatterjee, Narua, Ramprasad Chatterjee Road, P.O. & P.S. - Chandannagar, Dist. Hooghly, Pin- 712 136. 2. Sales Manager, Voltas Ltd. Regd. office at Voltas House, Dr. Babasaheb Ambedkar Road, Chinchpokil, Mumbai - 400 033. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Saikat Mali, Advocate For the Respondent: Mr. M. K.Mukherjee., Advocate Dated : 20 Jul 2017 Final Order / Judgement Order no. 4 date: 20-07-2017 Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 22-08-2016 passed by the Ld. District Forum, Hooghly in C.C. No. 129/2015.
Facts of the complaint case, in brief, are that the Complainant purchased an AC machine from the OP No. 1 on 21-04-2015. Allegedly, within a few days of its installation, he noticed that he was not getting proper cooling effect. Although the said problem disappeared for the time being, similar problem resurfaced on 06-05-2015. So, an official complaint was lodged on the very same day. Technician from the Company attended to it on 07-05-2015. However, on 27-05-2015, the AC machine completely stopped functioning. So, another complaint was lodged on the same day. After 4/5 days though technician from the company attended to it, as ill luck would have it, the very next day of such repairing, the machine again became defunct. Time and again the Complainant asked the dealer to replace the defective AC machine. However, it turned a deaf ear to such request. Against such backdrop, the complaint.
On notice, the OP No. 1 appeared before the Ld. District Forum and contested the case by filing WV. According to this OP, since specific case has been made out against it by the Complainant, the complaint is not maintainable against this OP. It is further stated that as per the warranty terms and conditions, the manufacturer is liable to replace the defective parts and during the warranty period, if any defect occurs in respect of the product in question, the manufacturer is supposed to render due service to make the machine operational. However, the Complainant was only interested in getting refund of money from this OP which was beyond the scope of the warranty provided to the Complainant. The Complainant also did not contact this OP regarding any defect of the product in question. This OP gained knowledge of the complaint case in question after getting notice from the Ld. District Forum. Another contention of this OP is that being an agent/dealer, it cannot be held responsible in regard to any manufacturing defect of the goods in question and therefore, it prayed for expunging its name from the cause title.
Decision with reasons Considered the submission advanced by the Ld. Advocates appearing on behalf of the respective parties. Material on record, including the citations referred to by the Ld. Advocates of both sides have also been carefully gone through.
The moot point for determination is whether dealer can be jointly and severally held responsible along with the manufacturer in case of defect of a product.
Before we advert on the issue, let us first see whether the AC Machine purchased by the Respondent No. 1 can be dubbed as a defective one. It is true that the Respondent No. 1 has not furnished any expert opinion to suggest that the AC Machine concerned is suffering from any sort of manufacturing defect. Having said that when a product starts malfunctioning within a very short period of its installation and repeated repairing fails to usher in any salutary effect to make it workable for a considerable period of time at a stretch, probably, it requires no further proof to suggest that the same is indeed suffering from some kind of inherent problems which is beyond repairing.
In case the AC Machine was not at all suffering from any sort of manufacturing defect, there is every reason to believe that the manufacturer would rush to the Ld. District Forum on notice to defend its case. Its conspicuous absence from both the Ld. District Forum as well as this Commission only signifies its unqualified acceptance of the allegations of the Respondent No. 1.
Next, we proceed to discuss the core issue being raised by the Appellant, i.e., as because the Respondent No. 1 has not hurled any allegation against it and further that the manufacturer of the AC machine has been made party to the case, whether Appellant can be absolved of the liability of mitigating the loss suffered by the Respondent No. 1.
It is important to keep in mind that it is the statutory right of a consumer to get defect free quality product. Notwithstanding the primary responsibility of supplying a defect product lies with the manufacturer, as a part and parcel of the supply chain and more so being one of the stakeholders of the profits being generated over selling of a product, it seems, the dealer cannot abdicate its liability to ensure that only defect free product is sold to a customer. In other words, failure on the part of the dealer to deliver a defect free product to a customer put it in the same strata vis-à-vis the manufacturer and none can avoid providing adequate compensation to the consumer.
In this regard, the decision of the Hon'ble Supreme Court in the matter of Jose Philip Mampillil Vs. Premier Automobiles Ltd. & Anr., reported in (2004) 2 SCC 278 is worth mentioning. Relevant portion of the said authority is appended below which is self explanatory.
"8. In our view, it is shameful that a defective car was sought to be sold as a brand new car. It is further regrettable that, instead of acknowledging the defects, the 1st respondent chose to deny liability and has contested this matter. For this failure in service the appellant is entitled to the following reliefs:
(a)"..The liability to pay the repair cost will be joint and several of both the respondents. The 2nd respondent is being held jointly liable as it was the duty of the 2nd respondent to have refused to deliver a defective car and in any case to have properly repaired the car during the warranty period.."
(b)It is clarified that the liability to pay is, as stated above, joint and several. In the event of the amount not being paid forthwith, the District Forum shall ensure execution expeditiously and immediately, if necessary, by making the 2nd respondent pay initially. It will then be for the 2nd respondent to claim reimbursement from the 1st respondent, if in law they are entitled to do so.
(c) There is no doubt that the appellant has had to suffer mental agony in taking delivery of a defective car after having paid for a brand new car and in taking the car again and again to the dealer for repairs. For this mental agony and torture, we direct that the appellant shall be entitled to a sum of Rs.40,000. The liability to pay this amount shall also be joint and several of both the respondents.This amount is to be paid within a period of one month from today. The District Forum shall ensure payment, if necessary, by execution.
(d) The 1st respondent had unnecessarily filed an appeal before the State Forum. . We, therefore, direct the 1st respondent to pay to the appellant by way of costs a sum of Rs.50,000/-".
The afore mentioned judgment makes the position clear that dealer and manufacturer is jointly and severally liable. Besides, if we consider the implications of Section 226 of the Contract Act, it cannot be said that the dealer is not jointly and severally liable for the defects in the AC machine in question, as the contract is through the dealer. Therefore, privity of contract is with him. May be, normally liability with regard to the defects of a product is to be borne by the manufacturer. But, that does not in anyway mean that the dealer is absolved from joint and several liability.
In the light of foregoing discussions, we are completely in unison with the findings of the Ld. District Forum. Therefore, we refrain from interfering with the same save and except relieving the Appellant from the obligation of payment of fine @ Rs. 100/- being imposed by the Ld. District Forum.
The Appeal, accordingly, succeeds in part.
Hence, O R D E R E D That A/874/2016 be and the same is allowed on contest in part. Appellant need not pay the accumulated fine amount of Rs. 100/- per day being imposed by the Ld. District Forum. Rest of the order shall remain unaltered. The modified order must be complied with within 45 days hence. No order as to costs. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER