Broja Gopal Mandal vs Hotel Lee Garden

THIS revision petition has been preferred against the order of the Orissa State Consumer Disputes Redressal Commission, Cuttack (in short the State Commission) wherein it dismissed the appeal filed by one Broja Gopal Mondal, (hereinafter referred to as Petitioner) and M/s Uniguard Electro Devices (P) Ltd., - Respondent No. 2 who was the Opposite Party alongwith Petitioner in the District Forum, in favour of M/s Hotel Lee Garden (hereinafter referred to as Respondent No.1).

ADMITTED facts of the case are that the Petitioner and Respondent No. 2 are the authorized dealer and manufacturer of Sharp Brand Voltage Stabilizers and other electrical goods respectively. Respondent No.1 purchased three numbers of 20 KVA (Single Phase) Servo Stabilizers of Sharp Brand, manufactured by Respondent No. 2 for a sum of Rs.83,000/-. The stabilizers were installed in the Hotel premises of Respondent No. 1 on 22.12.1996 by the service engineer of Petitioner and Respondent No. 2. The warranty period for the stabilizer was upto November 1997 i.e. for about one year. According to Respondent No. 1, within one week of their installation all three stabilizers started giving trouble and did not stabilize the output as a result of which his costly electrical equipments including Air Conditioner, Refrigerator, Fans and Television sets were totally damaged. Further, the three oil tanks meant for cooling the stabilizers were leaking. Since all these defects occurred during the warranty period. Respondent No. 1 sent several letters to the Petitioner and the service engineer complaining about the mal-functioning of the stabilizers. Except on one occasion when the service engineer came and repaired the leaking oil tanks, there was no response to the other letters. On the other hand, despite repairs, the cooling tanks of the stabilizers continued to leak and the voltage output problem also persisted. Respondent No.1, therefore, requested one Shri Sahoo, (B E Electrical) to inspect the three defective voltage stabilizers. Shri Sahoo after inspecting the stabilizers found the following defects: 1. The oil tanks of all the three stabilizers were leaking; 2. They were not stabilizing the specified output voltage; and 3. Five ceiling fans had been destroyed owing to voltage fluctuation.

Respondent No. 1, thereafter filed a complaint before the District Forum on grounds of deficiency in service and claiming compensation of Rs.1,53,820/- from the Petitioner and Respondent No. 2. Petitioner and Respondent No. 2, have denied that they did not respond to complaints of Respondent No. 1. In fact, the service engineer attended to the complaints whenever received. On the other hand, it was Respondent No. 1 who violated the conditions of the warranty by getting an unauthorized person to inspect and check the stabilizers supplied/ manufactured by Petitioner and Respondent No. 2. Therefore, they could not be held responsible for the defects caused due to the servicing of stabilizers by an unauthorized person. They further, stated that the service engineer had inspected and checked the stabilizers at the time of installation to the full satisfaction of Respondent No.1, and had thereafter carried out the necessary repairs. Therefore, there was no deficiency of service on their part.

The District Forum after going through the evidence on record allowed the complaint. The basis on which the District Forum reached its conclusion is self-explanatory and is reproduced below: In para 13 of the version the OPs emphatically deny the allegation that after installation, the voltage stabilizers failed to function properly. In the same para, it is averred that their service engineer Mr Ganguly had attended to the complainants place on receipt of call. The OPs have not filed affidavit in support of their case. Mr S B Sahoo (B Electrical) is an expert and correct report could be expected from him. No repairs were noted to have been carried out in any customer satisfaction certificate. It was also not mentioned that the complaint made by the complainant was false. The consumer satisfaction certificate is not before us. Therefore, the OPs cannot derive any advantage from the certificate, if any. The fact that there was mal functioning of the machinery is established on record beyond doubt.

BY the doctrine of Res Ipso Loquitor, it could only happen because of manufacturing defect in the absence of proof of mis-use. The misuse had to be established by the OPs, who led no evidence and did not serve any interrogatory on the complainant with the OPs that despite the repair work undertaken by the OPs, the system was not put to proper workable condition. Therefore, considering the facts, circumstances and weighing the evidence and materials on record, we hold that the stabilizers in question are defective and the OPs have exhibited gross negligence and deficiency in the sale service to the complainant in the deal. We have no doubt that due to the supply of defective stabilizers the complainant had suffered considerable mental agony and loss. He could not use his valuable electrical equipments. Although the complainant purchased the stabilizers from O P No.1, who is a dealer of and on behalf of the company, the company (OP No.2) is jointly and severally liable for the transaction alongwith the dealer. It goes without saying that if there is any deficiency of service on the part of the OPs in seeing to the proper functioning of the stabilizers during the period of warranty, it is legally actionable. Therefore, we hold that the stabilizers supplied to the complainant by the OPs suffers from defects and the OPs exhibited gross deficiency in service.

THE District Forum directed the Petitioner and Respondent No. 2 to replace the defective stabilizers with three new stabilizers (with one year warranty) at the place of the Respondent or refund him Rs.83,000/- together with interest at the rate of 15% per annum (if the same models are not available) within two months from the date of communication of this order as well as Rs.1000/- as cost of litigation. Aggrieved by this order, the Petitioner and Respondent No. 2 filed an appeal before the State Commission. The Petitioner during the course of the proceedings in the State Commission submitted, alongwith his appeal memorandum, copies of service reports indicating that the service engineer had visited the place of the Respondent No. 1 on specific dates, checked the functioning of the stabilizers and found the same to be in order. The signature of Respondent No. 1 accepting these reports was also a part of the service reports. The State Commission after considering the evidence filed before the District Forum as well as this particular piece of evidence rejected these as they were not credible and acceptable evidence, on the following grounds: Copies of these service reports were neither submitted before the District Forum nor were placed before us at the time of filing of the appeal to be taken for consideration. The Respondent No. 1 challenges these service reports on the ground that these have been manufactured later by the opposite parties and his signatures on these reports are forged signatures and he has never signed on any paper like these. The question that arises whether the appellant can take advantage of these service reports which were attached to the appeal memorandum at the belated stage and the authenticity of such reports have not been proved by the appellant? In our considered opinion, we do not think that the appellant can get any help from these service reports. Moreover when the appellant asserts that he has made several correspondence with the Respondent No. 1, not a single piece of such correspondence has been filed by the appellant. It is now clear that the Respondent No. 1 has made repeated complaints with the opposite parties within three months of the installation of the stabilizers as these stabilizers were not working as per specification. This will show that the stabilizers supplied to the Respondent No. 1 were defective ones as those were giving trouble from the very first month of installation. There is nothing in the record to show that the appellant and Respondent No. 2 had taken adequate measures in repairing and replacing parts of the stabilizers during the period of warrantee. We therefore, feel that the appellant and Respondent No. 2 are not only responsible for supplying defective stabilizers to the Respondent No. 1 but are also liable for causing deficiency in service for not maintaining the stabilizers in good working order during the period of warranty. Regarding the contention of the Petitioner and Respondent No. 2 that the stabilizer was checked up by an unauthorized person during the warranty period and was thus responsible for the defects, the State Commission concluded that since the checking and observations made by Shri Sahoo did not require the stabilizers to be opened, it cannot be concluded that Shri Sahoo mishandled or made any attempts to rectify the defects during the warranty period. With these observations, the State Commission found no reason to interfere with the order of the District Forum and confirmed the same by dismissing the appeal without cost.

HENCE this revision petition. Learned Counsel for the Petitioner and Respondent No. 2 made oral submissions. Learned Counsel for the Petitioner stated at the outset that he was no longer an authorized dealer of Respondent No. 2 i.e. the manufacturer of the stabilizers. Further, it was clear from the evidence on record that there were manufacturing defects in the stabilizers. Therefore, the responsibility for deficiency in service, if any, lies with Respondent No. 2 who was the manufacturer and not the Petitioner who was only the dealer. On the other hand, the Petitioner had properly and regularly attended to Respondent No.1s complaint. The State Commission had erroneously rejected this important evidence when submitted before it. Counsel for Respondent No.1 reiterated the submissions made before the learned fora below and emphasized that except on one occasion when the service engineer visited the premises and only partially removed some defects all other requests to both the parties went unheeded. We have heard learned Counsel for both the parties and have gone through the evidence on record. The fact that the three stabilizers had started mal-functioning during the warranty period is not in dispute. What was challenged by the Petitioner and Respondent No.2, is they had not attended to the many complaints on this issue by Respondent No.1. However, we note that the Petitioner and Respondent No. 2 have not been able to produce any credible evidence in support of their above contention. In fact, it needs to be noted that they did not even file an affidavit before the District Forum in support of this contention. They could also not produce any evidence or service record to indicate that they had carried out the necessary repairs. The belatedly produced customer service record purportedly bearing Respondent No.1s signature which they attached to their memorandum of appeal before the State Commission cannot be relied upon, for the reasons comprehensively and convincingly recorded by the State Commission. It is also a fact that the stabilizers have not been replaced till date. Regarding the contention of the Petitioner that the stabilizers were damaged because, Respondent No.1 had asked an unauthorized person Shri Sahoo to attend to this is also not convincing, as the District Forum has observed because there is no evidence that these were opened while being inspected by Shri Sahoo. In fact these deficiencies could be detected by even a lay person. On the other hand, Respondent No. 1 has proved his case by submitting credible documentary evidence that he had sent letters of complaints through registered post asking for the stabilizers to be repaired and later to be replaced because of their malfunctioning on many counts.

IN view of the above facts, we agree with the learned fora below that both the Petitioner and Respondent No.2 are jointly and severally responsible for serious deficiency in service by not attending to the genuine complaints of Respondent No. 1 during the warranty period of the stabilizers. While upholding the order of the State Commission, we however modify the relief given to the Petitioner as follows: The Respondent No.2 should replace with three new stabilizers with one year warranty at the place of the complainant or refund Rs.83,000/- together with interest at the rate of 9% per annum (in case the same models are not available) within two months from the date of the communication of this order. Both Petitioner and Respondent No. 2 are further directed to pay Rs.1000/- each to Respondent No.1 as cost of litigation. Ordered accordingly.