Raja Mohammed vs DHANABAGYAM

THIS appeal arises out of O.P. No. 57 of 1999 on the file of the District Consumer Disputes Redressal Forum, Pudukottai, under the following circumstances. The respondent/complainant purchased an "AKAI" Colour T.V. from the 1st opposite party/appellant herein on 25.4.1998. The T.V. set had developed so many audio and video problems. Hence, she lodged a complaint on 27.8.1999 to the first opposite party. Thereafter she issued a lawyer''s notice under Ex. A3 for replacement of the T.V. with a new colour T.V. As the first opposite party failed to reply, she filed the complaint for refund of the price of the colour T.V.

THE first opposite party filed his version and contended that he was not liable for replacement or refund and that the complainant lodged the complaint for the first time, after the expiry of one year warranty period that during the warranty period, she did not make even a single complaint. THE 2nd opposite party remained ex parte. The complainant filed Ex. A1 to Ex. A4 and the first opposite party did not file any document.

The District Forum by order dated 29.6.2000 allowed the complaint accepting the case of the complainant and directed the opposite parties to take return of the TV set and replace it with a new one or else pay a sum of Rs. 17,500 and take return of the TV set and pay interest at 12% on Rs. 17,500 from the date of sale and a sum of Rs. 10,000 towards mental agony and pain and Rs. 500 towards cost granting a month''s time to comply with the order.

THE only point arising for consideration is: whether there was any deficiency in service and unfair trade practice on the part of the opposite parties. It is the specific stand of the first opposite party/appellant that the complaint to the first opposite party was made after the warranty period. Though this was disputed on the side of the complainant, absolutely no material was placed on record before the District Forum in support of his stand. Once the warranty is gone, the alleged deficiency in service cannot be invoked. Another stand taken by the learned Counsel for the appellant is that in a case like this, only the manufacturer would be liable and not the dealer and he being the dealer, the District Forum ought to have exonerated him and confined the order only to the 2nd opposite party. Though the learned Counsel for the complainant asserted that the complainant had indeed during the warranty period orally and in writing approached the dealer, was not able to substantiate the same with any documentary evidence. It has, therefore, to be held that the complainant did not approach the dealer with the complaint during the warranty period.

AS to the question whether the dealer is liable, some of the decisions relied on by the Counsel are as follows: (1) Lakshmi Electro Control & Automation v. Fabionix India Pvt. Ltd., IV (2005) CPJ 585=2005 T.N.C.R. 150-152 (SCDRC). In that case, an A.C. Servo Amplifier was supplied by the opposite party No. 1 (Dealer) before the Forum, manufactured by the opposite party No. 2 was defective. It was held by the State Commission that both the manufacturer and the dealer were jointly liable following the principle laid down in Donoghue v. Stevenson, (1932) AC 562 (HL), though there was no privity of contract between the complainant and the manufacturer.

(2) Western India State Motors v. Sobhagmal Meena & Others, I (1991) CPJ 44 (NC). In that case, it was held by the National Commission that in the case of claim for replacement or for damages on account of manufacturing defect, the award of relief could be only against the manufacturer.

(3) Aruna Singhal v. Texla Television, Jupiter Radio, II (1991) CPJ 498. In that case, following the decision of the National Commission in Western India State Motors v. Sobhagmal Meena (supra), it was held that the manufacturer alone was liable and not the dealer. It was also a case where a TV set purchased was found to be defective, but within the warranty period, the complaint was made and in those circumstances, it was held that the opposite party was bound to replace it or set it right in such a way that it might give proper performance.

Thus, it would be clear that in the event of its being found that there was manufacturing defect and the claimant would be entitled to the relief, there could be an award only against the manufacturer and not against the dealer. So far as the present case is concerned, it has already been found that the complainant had not approached the dealer during the warranty period with her complaint. Once, the period of warranty expired, neither the dealer nor the manufacturer can be hauled up on the ground of deficiency in service or unfair trade practice. As already noted, the complainant did not produce any material to show that the opposite parties had been approached even during the warranty period with her complaint. In these circumstances, the conclusion reached by the District Forum cannot be sustained. The order against the second opposite party also cannot be sustained though the second opposite party chose not to contest the complaint and remained ex parte.

CONSEQUENTLY the appeal stands allowed. The order of the District Forum shall stand set aside and the complaint shall stand dismissed. No costs. Appeal allowed.