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Kent Ro System Limited v/s R.S. Raja Durai & Others

    First Appeal No. 268 of 2017

    Decided On, 10 January 2020

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MR. JUSTICE P.S. RANA
    By, (RETD.)
    By, PRESIDENT & THE HONOURABLE MS. SUNITA SHARMA
    By, MEMBER

    For the Appellant: Y. Paul, Advocate. For the Respondents: R1, Rajesh Kumar, R2, Gita Dhalor, Madhurika Verma, Advocates, R3, Ex-parte.



Judgment Text


Justice P.S. Rana (Retd.), President

1. Present appeal is filed against order dated 8.6.2017 passed by learned District Consumer Forum/Commission in consumer complaint No. 77/2016 titled Dr. R.S. Raja Durai v. M/s Kent RO System Ltd. & Ors.

Brief facts of consumer complaint:

2. Dr. R.S. Raja Complainant filed consumer complaint under Consumer Protection Act pleaded therein that complainant purchased one Kent Mini Softener in consideration amount of Rs. 6,000 from opposite party No. 3 through bill No. 0838 dated 5.11.2015 with one year warranty. It is pleaded that complainant purchased Kent Mini Softener with sole motive and intention to soften the hard tap water for skin and hair wash. It is pleaded that in addition Kent Mini Softener six packets 250 grams each of regeneration salt were given to complainant to soften the hard water. It is further pleaded that Kent Mini Softener was installed in the residence of complainant by opposite party No. 3. It is pleaded that when complainant started using Kent Mini Softener along with mini softener salt packets three packets were working with little problem in dissolving but remaining three packets were not dissolving with water on account of reason that these packets had expiry date of 2012.

It is pleaded that consequently complainant could not use the softener properly. It is further pleaded that thereafter complainant approached opposite party No. 3 to provide him water softener salt and opposite party No. 3 asked the complainant to approach Kent Care Centre. It is pleaded that thereafter complainant approached Kent Care Centre of opposite party No. 1 several times but opposite party did not solve the problem of complainant. It is pleaded that opposite parties committed deficiency in service and committed unfair trade practice.

3. Complainant sought relief to the effect that opposite parties be directed to refund an amount of Rs. 6,000 along with interest @ 18% per annum w.e.f. 5.11.2015 till the actual payment. In addition complainant sought relief to the effect that opposite parties be directed to pay an amount of Rs. 20,000 as damage for compensation. Complainant also sought relief of litigation costs. Prayer for acceptance of consumer complaint sought.

4. Per contra version filed on behalf of opposite party No. 1 pleaded therein that Mini Water Softener was purchased by complainant on dated 5.11.2015 for consideration amount of Rs. 6,000 which is still working without any problem. It is pleaded that additional six packets of softener salt were given to complainant as complimentary only and no consideration amount was charged from the complainant. It is further pleaded that product for which complainant has paid consideration amount is functioning properly. It is further pleaded that there is no manufacturing defect in product in question. Prayer for dismissal of consumer complaint sought.

5. Per contra separate version filed on behalf of opposite party No. 2 pleaded therein that opposite party No. 2 is authorised dealer of opposite party No. 1 and is running business at Kasumpti Shimla-9. It is pleaded that product which was sold by dealer to its retailer comes directly from the company in sealed boxes. It is further pleaded that opposite party No. 2 did not sell product in question to complainant. Prayer for dismissal of consumer complaint against opposite party No. 2 sought.

6. Separate version filed on behalf of opposite party No. 3 pleaded therein that opposite party No. 3 is not maintainable and complainant is estopped by his act, conduct and acquiescence to file consumer complaint. It is pleaded that complainant approached opposite party No. 3 to provide him water softener salt and opposite party No. 3 advised complainant to approach Kent Care Centre. Prayer for dismissal of consumer complaint against opposite party No. 3 sought.

7. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission ordered opposite parties jointly and severally to provide six packets of mini softener salt to complainant free of costs within thirty days from the date of receipt of copy of order. In addition learned DCF/DCC ordered opposite parties to pay amount of Rs. 7,000 towards mental harassment. In addition learned DCF/DCC ordered opposite parties to pay litigation costs to the tune of Rs. 3,000 to complainant. Feeling aggrieved against order passed by learned DCF/DCC opposite party No. 1 filed present appeal before State Commission.

8. We have heard learned Advocates appearing on behalf of appellant and co-respondents No. 1 & 2 and we have also perused entire record carefully. None appeared on behalf of co-respondent No. 3 and co-respondent No. 3 was proceeded ex-parte by State Commission on dated 29.11.2017.

9. 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 and whether it is essential to prove manufacturing defect of product in question by way of opinion of expert in order to fasten liability upon manufacturing company and whether dealer and service provider are personally liable for sale of expiry date packets of regeneration salt mentioned by manufacturing company in outer cover of packets?

2. Final order.

Findings upon point No. 1 with reasons:

10. Complainant filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent purchased Kent Mini Softener for consideration amount of Rs. 6,000 from opposite party No. 3 through bill No. 0838 on dated 5.11.2015 with one year warranty. There is recital in affidavit that Kent Mini Softener was installed by opposite party No. 3 at the residence of deponent. There is recital in affidavit that when complainant started using Kent Mini Softener along with mini softener salt packets it was observed that three packets were working with little problem with dissolving but remaining three packets were not dissolving with water on account of reason that three packets have expiry date of 2012. There is recital in affidavit that consequently deponent could not use softener since January 2016. There is recital in affidavit that deponent approached opposite party No. 3 to provide him water softener salt but opposite party No. 3 asked deponent to approach Kent Care Centre. There is recital in affidavit that thereafter deponent approached Kent Care Centre of opposite party No. 1 several times but problem of deponent was not solved. State Commission has carefully perused all annexures filed by complainant.

11. Opposite party No. 1 filed affidavit of Sh. Sohan Singh Sales Executive in evidence. There is recital in affidavit that complainant has paid costs of Kent Mini Softener only. There is recital in affidavit that salt packets were supplied to complainant as complimentary only. There is recital in affidavit that mini water softener was purchased by complainant from opposite party No. 3 on dated 5.11.2015 in consideration amount of Rs. 6,000 which is still working in proper condition. There is recital in affidavit that no costs of complimentary salt packets was received from complainant. State Commission has carefully perused all annexures filed by opposite party No. 1.

12. Opposite party No. 2 did not file any evidence by way of affidavits. Opposite party No. 3 filed affidavit of Shri Sanjeev Aggarwal in evidence. It is denied that three packets of regeneration salt were supplied to complainant which was of expiry date of 2012. There is recital in affidavit that packets of regeneration salt were given as a complimentary only without any consideration amount.

13. Submission of learned Advocate appearing on behalf of appellant that order of learned DCF/DCC that opposite parties would provide six packets of mini softener salt free of costs within thirty days from the date of receipt of copy of order is contrary to laws and contrary to proved facts and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission has carefully perused cash memo Annexure-C1 placed on record. It is proved on record that complainant purchased one Kent Water Softener from opposite party No. 3 manufactured by appellant in consideration amount of Rs. 6,000 on dated 5.11.2015. It is admitted fact that Kent Water Softener in question is manufactured by appellant. There is no evidence on record in order to prove that complainant has directly paid consideration amount to appellant. There is no evidence on record that there was manufacturing defect in Kent Water Softener.

14. State Commission is of the opinion that manufacturing company is liable only for manufacturing defect in Kent Water Softener. In the absence of any evidence on record of expert that there was any manufacturing defect in Kent Water Softener State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to exonerate manufacturing company from liability. See I (2018) CPJ 425 (NC) titled Pawan Kumar v. Nissan Motors India Pvt. Ltd. and Ors.; See III (2018) CPJ 156 (NC)=2018 (2) CPR 675 NC titled Himanshu Maheshwari v. Director Grand Nissan & Anr.; See II (2017) CPJ 462 (NC)=2017 (1) CPR 643 NC, Bhagwan Singh Shekhawat v. M/s. R.K. Photostate & Communication & Ors.; See I (2017) CPJ 333 (NC)=2017 (3) CPR 35 NC, Mahender Kumar v. Hero Honda Motors Ltd. & Anr.

15. Submission of learned Advocate appearing on behalf of appellant that appellant is manufacturing company of Kent Water Softener and manufacturing defect of Kent Water Softener is not proved on record by evidence of expert opinion and manufacturing company is not liable to pay costs to the tune of Rs. 7,000 towards mental harassment is decided accordingly. There is no evidence on record in order to prove that there was manufacturing defect in Kent Water Softener. There is no evidence on record that additional expiry packets of regeneration salt were sold to complainant by opposite party No. 3 with the expressed and implied consent of appellant. State Commission is of the opinion that appellant is not liable to pay compensation for mental harassment to complainant to the tune of Rs. 7,000.

16. Submission of learned Advocate appearing on behalf of appellant that there was no manufacturing defect in Kent Water Softener as per evidence of expert opinion and appellant is not liable to pay litigation costs to the tune of Rs. 3,000 is decided accordingly. State Commission is of the opinion that manufacturing company is liable for defect in Kent Water Softener only. There is no evidence on record that there was defect in Kent Water Softener which was sold in consideration amount of Rs. 6,000 to complainant. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to exonerate manufacturing company from liability because there is no evidence on record in order to prove that manufacturing company has itself issued packets of regeneration salt to complainant along with Kent Water Softener which are of expiry date.

17. It is proved on record that opposite party No. 3 has issued consideration amount receipt to complainant directly in the name of M/s Aggarwal Electronics. M/s Aggarwal Electronics has not issued consideration receipt Annexure-C1 dated 5.11.2015 as authorised dealer of appellant. On the contrary M/s Aggarwal Electronics has issued consideration amount receipt to complainant in individual capacity. There is no evidence on record in order to prove that expiry packets of regeneration salt were issued to complainant by opposite party No. 3 with the expressed and implied consent of appellant who is manufacturer of Kent Water Softener in question. It is proved on record that warranty card Snnexure-C5 was issued to complainant by opposite party No. 3 and there is recital in warranty card that service provider is Sevti Associates Kasumpti. In view of the fact that Sevti Associates Kasumpti opposite party No. 2 is service provider as per warranty card and in view of the fact that opposite party No. 3 has directly received consideration amount from complainant State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to exonerate opposite parties No. 2 & 3 from liability for supplying expiry packets of regeneration salt to complainant along with Kent Water Softener.

18. Submission of learned Advocate appearing on behalf of opposite party No. 2 that regeneration salt packets were supplied to complainant as complimentary only and on this ground consumer complaint filed by complainant be dismissed is decided accordingly. There is no recital in sale receipt that opposite party No. 3 has issued six regeneration salt packets to complainant in a complimentary manner to complainant. Opposite parties No. 2 & 3 did not adduce any independent evidence on record in order to prove that six packets of regeneration salt were supplied to complainant in a complimentary manner. Sole affidavits of opposite parties are not sufficient to hold that six packets of regeneration salt were supplied to complainant in a complimentary manner only because opposite parties are interested persons and are not independent persons. It is held that dealers and service providers are not legally competent to supply expiry date packets of regeneration salt to consumer.

19. Submission of learned Advocate appearing on behalf of complainant that order of learned District Consumer Forum/Commission is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that complainant failed to prove manufacturing defect in Kent Mini Softener in question. It is well settled law that manufacturing company is liable only for manufacturing defect in Kent Mini Softener. If dealers and service providers have sold expiry date packets of regeneration salt mentioned in outer cover by company then in

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that eventuality dealers and service providers are personally liable because dealers and service providers are not legally competent to supply expiry date packets of regeneration salt notified by manufacturing company in outer cover. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to exonerate appellant from liability. Point No. 1 is decided accordingly. Point No. 2: Final Order 20. In view of findings upon point No. 1 above appeal filed by manufacturing company i.e. M/s Kent RO System Ltd. is allowed. Consumer complaint against M/s. Kent RO System Ltd. is dismissed in toto. However order of learned DCF/DCC against M/s. Sevti Associates Kasumpti Shimla Dealer and M/s. Aggarwal Electronics Service Provider is affirmed. Order of learned DCF/DCC is modified accordingly. Consideration amount receipt Annexure-C1 dated 5.11.2015 issued by M/s Aggarwal Electronics Service Provider and warranty card Annexure-C5 issued by Service provider-cum-Authorised Dealer i.e. Sevti Associates Kasumpti Shimla shall form part and parcel of order. 21. Parties are left to bear their own litigation costs before State Commission. File of learned DCF/DCC along with 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 of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal disposed of.
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