THE ADDITIONAL THANE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOKAN BHAVAN, NAVI MUMBAI.
Consumer Complaint no. 79/2011
Complaint filed on :- 13/05/2011
Judgement Date :- 22/01/2014.
Shri. Vijay Santosh kumar Kunjutt
Shri Balaji Co.op.Hsg. Society,
Building no. 94, Flat no. 002,
New Mhada Colony, Mankhurd,
Mumbai – 400043. ….. Complainant
V/s.
1. Reliance Digital Retail Ltd.,
Maithili Signet, Plot no. 34/4E,
Near Vashi Railway Station,
Vashi, Navi Mumbai 400705.
2. Whirlpool of India Ltd.,
Address :- 1 Thirubhuwanai, Puducherry, 605107.
Address :- A-4, MIDC, Industrial Area, Pune,
Maharashtra. ..… Opposite Party no.
1 & 2.
Before :- Mrs. Sneha S. Mhatre, Hon. President
Mr. S.S. Patil, Hon. Member
Present :- For complainant Adv. A.K.Bhagia.
For Oppo. Party no. 1 Adv. Sudesh Keni
Oppo. Party no. 2 – exparte order.
JUDGEMENT
(Date :- 22/01/2014.)
Per Hon. Member Shri. S.S.Patil
1. This is the complaint regarding deficiency in service and adopting unfair trade practice by the opposite parties no. 1 by providing inappropriate washing machine as alleged by the complainant.
2. The facts of this complaint as stated by the complainant are that he has purchased Whirlpool Semi Automatic washing machine from opposite party no. 1 by paying Rs. 10,868/- on 19-04-2011. As per the order put by the complainant, the opposite party no. 1 had promised to send a genuine and original washing machine. Accordingly, the opposite party no. 1 sent one semi automatic washing machine to the residence of the complainant, however, it is alleged by the complainant that - a) the packing of the machine was not genuine as the box containing the said machine was tampered with. The seal of Whirlpool company was in torn condition. It was repacked with another adhesive.
b) The manufacturing date mentioned on the packing box was March 2011 but the opposite party had tried to hide the date by affixing another label which was bearing the date as April 2011.
c) The opposite party has also tried to hide the serial no., model no., etc. by affixing another label on previous original label on the box containing the said washing machine.
3. The complainant has further alleged that the washing machine was not delivered in a proper manner as it was delivered by a single person viz, Namdeo Patre, who brought it by throwing and dragging. It was specifically mentioned on the packing box that " Use two or more people to move and install washing machine failure to do so can result in back or other injury. "
4. The complainant has further alleged that thus, the opposite party has sold to him a diverse quality of washing machine.
5. The complainant has clarified further that, he has purchased a washing machine, having model XL A-72H. But the packing box bears the model name as SUPERWASH XL / ACE which is objectionable. This clearly shows that the product is not genuine and original.
6. The complainant has further stated that he immediately reported this matter to the opposite party no. 1 on phone. The opposite party no. 1 registered his complaint vide no. 8001048468 The opposite party no. 1and sent its Engineer on 21-04-11. He made a report for replacement of the said machine & assured that the product would be replaced within 3 to 4 days. However, no action was taken by opposite party no. 1. Again on 27-04-11 the complainant contacted the opposite party no. 1. Again opposite party no. 1 sent another employee viz, Raheem on the same day. He also promised the replacement but the opposite party no.1 did not replace the same. Inspite of his repeated demand for replacement the above said washing machine, opposite party no. 1 neglected to do the needful.
7. Therefore the complainant sent legal notice on 03-05-11. Still the opposite party no. 1 failed to reply the same. As per the service condition the opposite party no. 1, if consumer is not satisfied with any product purchased from it, then opposite party no. 1 will accept the said product if request is made within 7 days. The complainant has alleged that he had expressed his dissatisfaction on the same day and requested for replacement of the said washing machine but the opposite party no. 1 did not give heed to his request. Thus the opposite party no. 1 is not only deficient in service but has also adopted unfair trade practice by supplying the washing machine which was not genuine.
8. The complainant has further alleged that the distributor is not supposed to tamper the original product.
9. The complainant has also mentioned that he has not opened the packing of the said machine.
10. The complainant has finally made the following prayers :-
a) The opposite party be directed to replace the original semi automatic washing machine or to refund the cost of washing machine i.e. Rs. 10,868/- with interest along with cost of litigation and compensation.
11. The complainant has attached the Xerox copies of the following documents in support of his complaint.
a) Cash memo invoice
b) Delivery receipt
The complainant was admitted and notice was served on opposite party. Subsequently, the name of the opposite party no. 2 being the manufacturer of the defective washing machine was added to the complaint. Notice was also served on opposite party no. 2. However, inspite of service of notice on opposite party no. 2, it remained absent before this Forum and hence an ex- parte order was passed against opposite party no. 2, vide roznama dtd. 02-09-13. The opposite party no. 1 has appeared before this Forum and filed its written version wherein it has denied the allegation of any defect in the said washing machine. It has also denied the allegations of any deficiency in service on its part.
12. The opposite party no. 1 has specifically stated that the complainant has merely suspected the quality and authenticity of the washing machine. The complainant has not verified the defects in the said washing machine. The washing machine has not been examined by any expert. Hence there is no cause of action against the opposite party no. 1. However the opposite party no. 1 has admitted that the complainant has purchased the washing machine from it on 19-04-11 (model A- 72H). The same was delivered to him on 20-04-11. At the time of delivery of the said washing machine the complainant has pointed out that there were two different stickers of two different manufacturers on the packaging box containing the washing machine. The complainant did not permit to install the said machine alleging that the product is not genuine. The opposite party no. 1 has also admitted that there were two manufacturer’s stickers affixed on the packaging box of the washing machine. It was also admitted by the opposite party no.1 that it has undertaken to replace the said washing machine with another one, to the satisfaction of the complainant, but the complainant did not respond to its proposal.
13. On 27-04-11 the opposite party no. 1 got call from the complainant asking for the replacement of the said machine but, the washing machine of the same model was not available on the said day. Therefore, the opposite party no. 1 requested the complainant to permil it to refund the price of the said machine but the complainant issued a legal notice to the opposite party no. 1. The opposite party no. 1 is still ready to refund to the complainant the price of the washing machine. However, it is denied that the packing of the washing machine and the manufacturing date, serial number, model etc. was tampered by opposite party no. 1.
14. The opposite party no. 1 has further submitted that, as per the prevailing practice the manufacturer is responsible for the product and its packaging. It is also pointed out by the opposite party no. 1 that, the complainant has not made the manufacturer as a party in this complaint. Hence, the complaint is non maintainable for non joinder of the proper party to the complaint. Finally the opposite party no.1 has requested to dismiss the complaint against it with cost.
15. The complainant has then filed an affidavit of evidence and written argument wherein, he reiterated the facts and points mentioned in his complaint. The opposite party no. 1 filed its written argument wherein it has reiterated the facts mentioned in its written version. We heard the Ld. Advocates for both the parties and perused the documents submitted by them and our findings are as follows :-
16. The complainant has purchased a Whirlpool semi automatic washing machine Sawm Super wash – A 72H, 7.2 Kg. E.A. ING 111411684 from opposite party no. 1 on 19-04-11 for Rs. 10,868/- (Ex. B- Delivery note). Therefore, the complainant is the consumer of opposite party no. 1. Opposite party no. 2 is the manufacturer of the above said washing machine. It is alleged by the complainant that when the washing machine was delivered at his residence, he found that the printed seal of the manufacturing company i.e. Whirlpool was in torn condition and the same washing machine was repacked with another unprinted adhesive. In support of this allegation, the complainant has produced the copy of the photograph at Ex. “ C ”. In this respect the complainant has not produced even the original photograph of the packaging box containing the washing machine showing the torn seal of the packaging box. From the Ex. “ C ” it can’t be concluded that the seal was in broken or torn condition and the washing machine was repacked.
17. The next allegation of the complainant is that the manufacturing date mentioned on the packing box was March 2011 but another date was also put on box as April 2011. In this connection the photographs of the packaging box shows two different dates of manufacturing as alleged by the complainant and the opposite party no. 1 also admitted in its written version in para “ C ” that, “ it is the inadvertency of the manufacturer that caused two stickers affixed on the package.” Thus, it is true that the packaging box bore two different dates on which the washing machine was manufactured.
18. It is further alleged by the complainant that the packaging box also had two model numbers i.e. 11913 & another PO 14722810 A. It also shows two different serial numbers i.e. one ING111411684 & another 3111303631 (Ex. E & E1) clearly shows these two different numbers.
19. The another allegation of the complainant is that, he had purchased XL-A 72H model washing machine. However, the box containing the said washing machine shows model SUPERWASHXL/ ACE. From Ex. F the allegations appears to be true.
20. It is also alleged that the packed washing machine was brought to the residence of the complainant by throwing & dragging by one person only when the instruction on packaging box clearly mention that the washing machine be moved & installed by two persons.
21. The another allegation of the complainant is that, the manufacturing place is Pudecherry and another places is Pune showing two manufacturing places. In this respect from the papers it is seen that the opposite party no. 2 has the places of manufacturer at Puduchery and registered office at Pune. Even the complainant has sent the notice at these two places. Therefore, it does not disclose that there is anything wrong in mentioning these two places.
22. The complainant has further alleged that as per the service condition if the customer is not satisfied with a product of opposite party then the opposite party would accept the product if request is made within 7 days. He had expressed his dissatisfaction raising the above 7 objections on the day of delivery. But opposite party no. 1 did not respond to his dissatisfaction and request to replace the said washing machine.
23. It is seen that the packaging containing the washing machine had two different model numbers. Two different serial numbers, two different manufacturing dates. The printed seal of Whirlpool was broken. Even it was not brought and handled with care by two persons as per service condition. These circumstances have certainly raised the suspicion about the genuineness and intactness of the washing machine packed in the packaging box. Though it is clear that the washing machine has not been examined by any expert to prove that it is defective the above circumstances certainly raise the suspicion about the genuinity and intactness of the machine purchased by the complainant from opposite party no.1. When the complainant expressed his dissatisfaction as per the service condition it was the service obligation of opposite party no. 1 to replace the said washing machine with another which can give satisfaction to the consumer worth of price paid by him for that product. This is not only the liability of the dealer of the manufacturer but it is also the liability of the manufacturer to produce well packed genuine product to the consumer. It is also the dealer (opposite party no. 1) to see that the product is well packed with proper labeling and it is delivered properly to the customer without any tampering even the labels affixed on the packing box are intact and are not tampered with.
24. In view of the above observations, certainly both the opposite parties are deficient in their service by supplying washing machine in a tampered packing box bearing different model numbers, dates of manufacturer etc. Even opposite party no. 1 did not reply to the notice of the complainant. The above circumstances should have caused mental agony & inconvenience to the complainant. Therefore, the complainant is entitled for the compensation of Rs. 10,000/- for the same. He is also entitled for the cost of this complaint. Therefore, both the opposite parties are liable jointly and severally for the above said deficiency in service.
25. We therefore pass the order as follows :-
FINAL ORDER
1. Complaint bearing no. CC/79/2011 is partly allowed.
a) Both the opposite parties are directed to provide the genuine and original semi automatic washing machine of Whirlpool Company sawn super wash A-72H, 7.2 Kg. capacity, jointly and / or severally to the complainant. The complainant is to handover the packaging box containing the disputed washing machine to opposite party no. 1.
OR
Opposite parties are directed to pay jointly and / or severally Rs. 10,868/- (Rs. Ten thousand eight hundred & sixty eight only) with interest @ 9% p.a. from 19-04-2011 till payment to the complainant and the complainant is to hand over the above said box containing the disputed washing machine to opposite party no. 1.
b) The opposite parties are directed to pay jointly and / or severally a compensation of Rs. 10,000/- (Rs. Ten thousand only) to the complainant for causing mental agony and inconvenience to the complainant.
c) The opposite parties are directed to pay jointly and / or severally an amount of Rs. 5,000/- (Rs. Five thousand only) to the complainant towards the cost of this complaint.
d) The opposite parties & the complainant are directed to comply with the above said order within 30 days of the receipt of this order.
e) Copies of the above said order be supplied to both the parties free of cost.
Date :- 22/01/2014.
Place :- Kokan Bhavan – Navi Mumbai.
(S.S.Patil) (S.S.Mhatre)
Member President
THE ADDITIONAL THANE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOKAN BHAVAN, NAVI MUMBAI.
