At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
By, THE HONOURABLE MR. T.S.P. MOOSATH
By, JUDICIAL MEMBER & THE HONOURABLE MR. R. RANJIT
For the Appellant: Cherunniyoor P. Sasidharan Nair, Advocate. For the Respondent: -----
R. Ranjit : Member
Appeal is filed by the opposite party in CC.294/14 on the file of Consumer Disputes Redressal Forum (for short district forum), Kottayam. Appeal is directed against the order of the Forum directing the opposite party to replace the defective softel power juicer with a brand new of the same model having same price or in the alternative the opposite party is directed to refund Rs.4099/-, the price of the juicer and also to pay Rs.2000/- as compensation and Rs.1500/- as cost.
2. The case of the complainant is that, the complainant has given an order with the opposite party through phone for purchase of softel power juicer. The opposite party send the product through business post and the complainant accepted the juicer after remitting the entire amount but when the packet was open it was found that the juicer was broken. So, the complainant informed the matter to the opposite party. But the opposite party did not cared to settle the matter. It amounts to deficiency of service and so he filed the complaint.
3. Opposite party filed version contending that the complaint is bad for non jointer of necessary party and since the manufacturer of the product is not made a party. They further contended that they had issued a fresh juicer with no complaints and there is no chance of causing any damage to the juicer as alleged. They had informed the complainant that if there any complaint to the product at the time of it transit they are ready to replace the same on site or repay the amount of the product. But the complainant was not ready to settle the matter. They are now also ready to replace the product. There is no deficiency of service on their part and prayed for dismissal of the complaint.
4. Evidence consisted of proof affidavit filed by both sides and Exts.A1 and A2 marked on the side of the complainant.
5. The lower forum appreciating the materials produced found that the juicer is having defect and the act of the opposite party in delivering the broken juicer to the complainant and delay in providing proper service amounts to deficiency of service and passed the impugned order. Aggrieved by that order opposite party has filed this appeal.
6. We heard both parties and perused the records.
7. The contention raised by the learned counsel for the appellants is that the manufacturer of the product was not made a party to the complaint and the complainant did not take steps to examine the product/juicer by a expert as per section-13( c) of the Consumer Protection Act. It also contended that the forum has no territorial jurisdiction to entertain the complaint as opposite party’s office is situated at Thiruvananthapuram.
8. On perusing Ext.A1 the invoice of the product dated:18.8.2014 it is seen that the juicer is ordered through phone and it was delivered at Kottayam, where the complainant resides and so part of cause of action has taken place within the territorial jurisdiction of CDRF, Kottayam and hence we find that CDRF, Kottayam has jurisdiction to entertain the complaint.
9. Opposite party has stated in its version that if any complaint is caused to the product at the time of its transit they are ready to replace the product at site or repay the amount of the product. They further stated that even now they are ready to do so. Even as per Ext.A2 warranty card, the opposite party is bound to repair or replace the product. Admittedly the broken product was not replaced or repaired by the opposite party and also did not repay the amount of the product, to the complainant. The case now canvassed by the appellant is that expert evidence as contemplated under 13( c) of the Consumer Protection Act is needed to prove the juicer is having manufacturing defect, is devoid of any merit, since the appellant has already undertaken to replace the defective juicer. Section-13( c) of the Consumer Protection Act will be made applicable only when the alleged defect cannot be determined without proper analysis for test of goods. Here is the case in which the
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opposite party has admitted the defects in their version and so the question regarding sending the product for expert examination does not arise at all. The appellant/opposite party cannot blow hot and cold at the same time. The lower forum based on the materials placed on correct analysis of the facts of the case has rightly passed the impugned order. In the result appeal is dismissed. Parties to suffer their respective costs.