1. By filing this claim under section 25 of the Punjab Consumer Protection Act, 2005 (hereinafter to be called the Act) claimant has maintained that he along with his father purchased a washing machine (product) which was having warranty of period of one year; after few months product became out of order and started to give different kinds of sounds; claimant approached defendants but of no consequences; a legal notice as required under the Act was too issued to defendants which they did not bother to reply.
2. In prayer clause claimant has prayed for return of price paid for product and Rs. 1,00,000/- (one lac) as damages for mental torture.
3. It is worth mentioning that claimant is minor and application is being followed by his father Syed Sardar Ahmad Pirzada who is a blind man.
4. After issuance of notices to defendants, they had turned up and they submitted a joint written statement. In preliminary objections they maintained that claim is false, frivolous and baseless; claim has been filed by Syed Ahmad Pirzada whereas warranty card is in the name of Syed Usman Pirzada; legal notice was also signed by Syed Usman Pirzada; claimant has not come to this Court with clean hands; claim is barred by section 28 (4) of the Act and claimant has no cause of action.
On facts it was admitted that product was purchased by claimant. It was further asserted that on 01.09.2012 defendants' representative visited claimant's house and replaced suspension rods which was causing noise; again on 26.09.2012 defendants' representative made a visit to the house of claimant but he did not observe any wrong in product; on receipt of legal notice defendants called claimant many a time for visit his house but he refused; defendants made their best efforts to redress the grievances of claimant. Dismissal of claim was prayed for.
05. In pursuance to directions of this Court passed on 02.11.2012 product was produced in Court for its examination on 05.11.2012. All concerned including Mr. Muhammad Adnan Technician of defendants' department were present when product was got run. Mr. Muhammad Adnan Technician being an expert admitted that there was a fault in product so I had recorded his statement as Cw-1. Thereafter I observed that as most of the facts are under admission and this Court also got expert evidence by exercising the powers under Rule 5 (2) of the Punjab Consumer Protection Rules, 2009 (Rules) so there was no need for further evidence of either of parties in this case hence I had directed both sides to deliver the arguments today, which have been heard.
06. I may also refer Rule 14 (2) of the Rules which authorizes this Court to decide a claim on the basis of merit of the case and documents available on record if defendant admits the allegation made by claimant.
07. The facts under admission in this case are as follows: - a) Claimant is a consumer and defendants are manufacturers as well as services provider as defined under the Act. b) Claimant Syed Usman Suleman Pirzada had purchased washing machine from defendants on 10.02.2011 against a consideration of Rs. 29500/-. c) A warranty card was issued by defendants to claimant which had covered certain eventualities for a period of one year. d) After some time of purchase there was a defect in product which was reported to defendants.
On this defendants' representative who was Mr. Muhammad Adnan Technician (Cw-1) attended the complaint and four suspension rods of product were replaced. e) Legal notice was issued to defendants but they did not bother to reply for the same.
08. Learned counsel for defendants maintains that claim has not been filed by the person who had purchased product. I do not find so. The claimant in this case is Syed Usman Suleman Pirzada and admittedly receipt for purchase and warranty card about product are in his name. It is not denied that Usman is minor and in this context "Form-B" issued by "NADARA" is also part of record. This fact that Usman is minor and he still did not get CNIC is specifically mentioned in paragraph no. 1 of claim. However, under the word "Applicant" name of father of claimant Syed Sardar Ahmad Pirzada is recorded who also signed the same. An express authority by Claimant in favour of his father is also available on file. In these circumstances claim has been properly instituted and for that Rule 13
(4) of the Rules is relevant which says that an aggrieved person the Authority or an authorized agent shall submit a claim in the Court in person or through any means of communication. Even otherwise Syed Sardar Ahmad Pirzada is real father of claimant having no adverse interest to minor, therefore, if he had recorded his name under applicant and signed the same particularly when this claim has been instituted in person, there is found no defect in bringing the claim before this Court.
9. Next it is argued by learned advocate for defendants that claim is barred by limitation however no details whatsoever have been given in this context.
10. Perusal of copy of legal notice shows that it was issued on 19.09.2012 whereas claim was filed on 17.10.2012. Limitation to file a claim starts from the date when cause of action finally accrues to a party. It is in written statement that even on 26.09.2012 defendants' representative visited the house of claimant to redress his grievances. Therefore, claim is well in time.
11. Now, I come to factual controversy in this case. As mentioned earlier Rule 5 (2) empowers me to rely on the statement of an expert. In this case the statement of expert is of defendants' department and none else who was brought in Court by department itself. He/Mr. Muhammad Adnan as Cw-1 categorically stated that first complaint about product was attended by him; at that time one suspension rod of product was defective which had resulted into disturbance of balance of machine; all four suspensions rods of washing machine were replaced; operating procedure of product is that firstly it washes cloths, then rinse and spins; he had seen the machine during running condition in Court and the sound at the time of rinse and spins is excess in the product from normal level and for that company was ready to rectify said defect.
12. Statement of this witness was not cross-examined by claimant, however, he faced test of cross- examination by learned advocate for defendants. He replied that he had given his opinion on the basis of experience and he was confident that complainant was not too serious.
13. In view of statement of Court witness, cross-examination made by defendants and contents of written statement it has been established that before expiry of warranty period this is the second occasions when defect has been reported about product. Both complaints of claimant were also found genuine. If after purchase of washing machine some of its part was found defective, it will also be deemed to be defective product because every part is a component of product.
14. In view of above it is finally resolved that product sold to claimant was and is defective hence claimant has rightly asked for return of price. In Court during arguments he had also requested for replacement of machine if same model is available with defendants.
15. Second part of prayer of claimant is for damages to be imposed on defendants because of mental agony which he had faced. It has been admitted before me that at the time of first complaint claimant had taken the product to the office of defendants and after couple of days defective parts were replaced. It is also evident from written statement that claimant had approached defendants many a time and defendants tried to redress his grievances. To the extent of version of defendants in this context plea does not appear to be logical or plausible because claimant if earlier was satisfied after replacement of suspension rods of product then how on second occasion he could refuse the services of defendants. Father of claimant is a blind man.
How he can observe his daily pursuits for that there is no need to say anything.
16. Therefore I have no reason for turning down the plea of claimant asking for damages against defendants. However, the amount of Rs. 1,00,000/- (one lac) does appear to be inappropriate and it should be reasonable keeping in view facts and circumstances of this case.
17. The result of above discussion is that this claim is accepted. In terms of section 31 of the Act, I issue an order to defendants directing them to take following actions within fifteen days from today: -
1. To replace the product and if same model is not available, to return the claim price thereof which is Rs. 29,500/- (S. 31-b & c)
2. To pay an amount of Rs. 50,000/- as damages to claimant. (S. 31-f)
18. File shall be consigned to record room after its due completion.