D.O.F. 13.04.2009
D.O.O. 29.08.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan : President
Smt.K.P.Preethakumari : Member
Smt.M.D.Jessy : Member
Dated this, the 29th day of August, 2011.
C.C.No. 98/2009
1. M. Raghavan,
S/o. Chathu,
‘Suras Nivas’
Nellunni, Mattannur P.O.,
Kannur Dist.
2. V.M. Rajeevan, : Complainants
S/o. Kuhiraman,
‘Sreelakam’,
Moonnu Periya, Mavilayi (P.O.),
Kannur Taluk.
(Both Rep. by Adv. V. Raju)
1. Godrej & Boyce Manufacturing Co. Ltd.,
Door No.IX/418/A4-A5-A6-A8-A9,
Near Info Park, Edachira, Kakkanad,
Kochi 682 030.
(Rep. by Adv. P. Rajeev)
2. K.T. Nithyanandan,
S/o. Damodaran,
Door No. T.M.C. 20/1410 : Opposite Parties
‘Amrutha’, Templegate, Thalassery
3. Rajesh Nithyanandan,
S/o. K.T. Nithyanandan,
T.M.C.20/1411,
‘Amrutha’, Templegate, Thalassery.
4. Amrutha Premchand,
D/o. K.T. Nithyanandan,
T.M.C.20/141,
‘Amrutha’, Templegate, Thalassery.
O R D E R
Sri. K.Gopalan, President
This is a complaint filed under section 12 of Consumer Protection Act for an order directing the opposite parties to replace the defective refrigerator with a new one or the cost of ` 11,500 with interest and cost and to an amount of ` 5,000 for the damage and a sum of ` 5,000 for the mental agony together with cost of this proceedings.
The brief facts of the case set up by the complainant are as follows : The 1st complainant Mr. Raghavan purchased a refrigerator manufactured by 1st opposite party and marketed by opposite party No.2 to 4. He purchased the refrigerator for 11,500 on 15.03.08 in order to give as a gift to the 2nd complainant, the son-in-law on the occasion of his house warming ceremony. On the day of house warming ceremony itself they kept milk in the refrigerator but it was found rotten on the next day. Milk was placed again for two-three days but the same result repeated. This was informed to the opposite party No.2 and 3 by the complainants along with the friend of 2nd complainant Mr. K.M. Vinodan. The opposite party No. 2 and 3 told the complainants that it may be due to the non-movement of knob inside the refrigerator. But on examination it was found in correct position. A plastic stand which was purchased from 2nd opposite party also placed expecting good result. But the cooling system continued to be remained failure. It was informed to 2nd opposite party. 2nd opposite party told the complainant that company technicians would come within two weeks and set right the cooling system. Technicians came in the month of May, 2008. But after thorough check up they informed second petitioner that the set was not working since there was no gas in the system. So the refrigerator had to be taken to Kakkad at the Company’s authorized workshop. It was then taken to workshop by second complainant spending ` 240. After two weeks second complainant was informed that the system got repaired. It was taken back to home and found the cooling system was fully satisfactory but locking system was not properly functioning and the door is not properly joining and another complication developed. While working the refrigerator it creates a heavy and roaring noise with which the inmates were disturbed in their sleep especially second complainant was a patient suffering from giddiness and neuron problem. The patient/petitioner No.2 suffered a lot with the heavy sound produced by the refrigerator. On observation some other defect was also found and same was reported to the Ernakulam office. On 17.09.2009 the technicians came and made some repair in name sake but did not cure the defects. On thorough enquiry it was found that the refrigerator is an old one which the company agents are collecting in exchange festival. Hence this complaint.
On receiving the complaint notice were sent to opposite parties. 1st opposite party made appearance and notice to others returned. Subsequently notice were served through publication and the same produced and received on the file of the Forum. Attempt for settlement failed and 1st opposite party filed version contending as follows :
The fridge was sold to complainant from the shop of the 2nd opposite party and the details of the transaction was not known to him. After receiving complaint the technicians of 1st opposite party attended the refrigerator and noticed there was a shortage of gas in compressor and the same was filled. This would have occurred mainly due to improper maintenance of the fridge in dispute by the complainant. This may also have occurred in transit while the complainant was taking it to his house. That was rectified free of cost. Later complainant had lodged another complaint that the fridge was having an unusual sound. After receiving the complaint technicians of opposite party visited complainants house but he did not permit them to attend the fridge. The noise level permissible as per the Noise Pollution (Regulation and Control) Rules 2000 is 46. This noise level is to be measured at a distance of one meter from the appliance in the case of refrigerators. The ambient at which the noise is measured also has a role on the value recorded. It is a well accepted principle that there should be a difference of 10 dB between the ambient noise and the appliance notice. It is false to say opposite party supplied an old refrigerator. The fridge in dispute is free from manufacturing defect. If any defect is found that is only due to mishandling or voltage fluctuation. Even then opposite party is ready to rectify the alleged defect. There is no manufacturing defect to the refrigerator. No deficiency of service can be attributed against this opposite party. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled for any relief as prayed in the complaint?
3. Relief and cost.
The evidence consists of oral testimony of PW1, PW2 and Ext.A1 to A14 and Ext.X1 report of the Commissioner. The opposite party did not adduce any evidence neither oral nor documentary even if opportunity granted for opposite party to adduce evidence on payment of cost.
Issues 1 to 3
Admittedly complainant No.1 purchased fridge from 2nd opposite party’s shop on 15.03.2008. The case of the complainant is that the cooling system of the fridge has not been functioning. 2nd opposite party first responded to this defect that it may be due to the non-movement of knob inside the refrigerator. But on verification it was found that the knob was in correct position. Even providing plastic stand did not make any change. So failure of cooling effect had again brought to the notice of 2nd opposite party. He thereafter informed complainant No.2 that technicians would come and repair. In the month of May, 2008 the technicians came but after verification they told complainant to take the fridge to their authorized workshop at Kakkad so as to fill the gas in the system. It was taken to Kakkad workshop and after two weeks, on information of repair, complainant had taken back the fridge. But the locking system was found not working properly and door was not properly joining. Moreover, there was roaring sound while the system had been working. It has effected badly much trouble to complainant No.2 who is a patient suffering from giddiness and neuro problems. Again on 17.09.08 the technicians came and made some repair but all the defects continued to be existed. Again on repeated complaint opposite party sent technicians and made some repair upon the compressor. But there was no result. On thorough enquiry it was found and understood that the refrigerator was an old one collected in exchange festival.
Opposite party on the other hand contended that when they received the complaint of cooling system that was rectified. When again complaint was lodged with respect to unusual sound technicians of opposite party visited complainant’s house but they did not attend the complaint. The allegation of the complainant that opposite party supplied old refrigerator is absolutely false and baseless. If any defect was caused due to mishandling or voltage fluctuation, opposite parties are ready to rectify the alleged defect as stated by complainant. There is no manufacturing defect.
Complainant No.2 filed chief affidavit in tune with his pleading in order to substantiate his case. He has stated in the affidavit evidence that the first complainant purchased the refrigerator bearing brand “Pentacool Direct Cool Series” of Rodney Company from Godrej Company from peoples Radio Service, Thalassery belonged to opposite parties No. 2 to 4 for gifting the same to him. Ext.A2 user guide reveals that the brand is Penta Cool Direct Cool Series. Ext.A1 is the guarantee card. It reveals that the refrigerator has a five year warranty on compressor and one year warranty on all other parts from the date of purchase. Complainant has pleaded that 2nd opposite party purchased the fridge on 15.03.08 and the fridge was put on use but very next morning it was found the cooling system of the fridge was not working. He has stated by affidavit evidence that the milk kept in the fridge was rotten and the same condition repeated on the following 3-4 days. Complainant further states that when the same reported to 2nd opposite party he told that it may be due to the non-movement of the knob in the refrigerator. He confirmed it wrong when he verified the fridge. Placing proper stand was also made useless. He has further stated that when it was reported to 2nd opposite party he immediately collected his address and phone number and also asked to produce cash bill promising him that the technicians of Company would come and repair the fridge within two weeks. Complainant further states that he surrendered cash bill but the technicians came to repair after two months in the month of May, 2008. After verification and testing they informed complainant that there was no gas in the system and to fill the gas, refrigerator has to be taken to their authorized workshop at Kakkad. He adduces evidence by way of affidavit evidence that the fridge was taken to Kakkad in goods auto rickshaw into the workshop at Kakkad. On information after two week the repaired fridge was taken back to home. Ext.A4 and A5 the receipt issued by driver of goods vehicle used for shifting refrigerator reveals that 240 each has been spent by complainant to shift the fridge to and fro. But complainant states that though the cooling system was satisfactorily working there were new defects like non-functioning of locking system, improper joining door together with roaring sound. Complainant who adduced evidence by way of affidavit and produced documents that he was a patient suffering from giddiness and neuro problem. So that unusual sound of the fridge caused much suffering to complainant. Complainant produced documents Ext.A4 to A10 in order to prove his disease. It is true that A4 to A10 proves that the complainant had been under treatment as a patient of Pariyaram Medical College both as impatient and out patient. But there is no expert medical opinion to show how far the sound of the fridge had been affected the health of the complainant. Since that is a point which can only be proved by expert opinion we feel it is not safe to depend upon the evidence of the complainant to arrive at a conclusion that the sound of the fridge had caused damage to such an extent so as to award compensation. It could have been considered if the treating doctor or else a medical expert if examined and adduced evidence to that point.
It is true that complainant might have suffered mental and physical trouble since right from beginning he was not able to use it. This is an article complainant No.1 gifted to 2nd complainant. If the gifted article happened to become useless, that is a matter of shame which will affect the prestige especially in this matter complainant No.2 being father-in-law of complainant No.1. In usual course other relatives will have attention on this item gifted by father-in-law, which cannot be discarded while considering our customs and tradition.
In cross examination also it has brought out that this fridge was gifted to PW1/Complainant No.2 by his father-in-law, house warming was on 16.03.08, fridge was purchased on 15.03.08, they started using the fridge on 16.03.08 itself, on 17.03.08 when the milk was taken from the fridge it was found rotten due to poor cooling, stand was provided for proper installation, 2nd opposite party was informed of the default, mechanics inspected the fridge and asked to take the fridge to their workshop, after repair cooling system was started functioning, the sound started to develop from the workshop of opposite parties etc. PW1 denied that it is not correct to say the technic was not allowed to carry out repair. Complainant has pleaded that whether complaint of sound and al were reported again and again the technicians of 1st opposite party came on 17.09.2008 and made some namesake repair but the refrigerator remained same with all the defects as those are inherent. 1st opposite party in their version nothing has stated about the repair of 17.09.08. Anyhow, opposite party is aware of the defect of the fridge. Opposite party has not adduced any evidence to show their readiness to carry out the repair.
Moreover, in cross examination 1st opposite party suggested that 1st opposite party has no authorized work shop and complainant is only saying lie for the sake of case. But opposite party has not taken such pleading though complainant has pleaded this aspect specifically. Nothing has said about the workshop in Kakkad except saying that the “one and the only complaint of the complainant; at that time, was defective cooling system and that was also rectified at free cost eventhough the defect had happened not on account of manufacturing defect”. Complainant has pleaded specifically that the technician of opposite party asked him to take the fridge to authorized workshop to fill the gas since the system was not working as there was no gas. This allegation has not been challenged or denied by the opposite party. That means the main repair supposed to be done is mainly filling up the gas. So it can be assumed that the fridge has been taken to the workshop at the cost of complainant for the purpose of filling up the gas. Opposite party has also no case that for filling up of gas there is no need to take the fridge in workshop. If that could be done otherwise opposite party should have been taken such contention while presenting the version itself. So that the point is clear that the fridge was repaired at their authorized workshop at Kakkad. It can also be assumed that the fridge was in default from the day of purchase itself. Then the contention taken by the opposite party that the defect developed due to improper maintenance is absolutely wrong and baseless.
However, opposite party has admitted that the complainant has only one and only complaint of the complainant, at that point of time, was defective cooling system. The question of other defects arose only thereafter attending the first defect by the opposite party. The defect was seen reported immediately. That means opposite party was aware of the fact that, at first, there was only defect of cooling and after carrying out the repair other defects developed. That means even according to the version of opposite party the defects including the alleged sound cropped up subsequent to the first repair carried out by opposite party. In ordinary course it is a pathetic condition as far as a purchaser of a new fridge is concerned, whatever may be the contention taken by the opposite parties.
The expert Commissioner was appointed in this matter. Report of the Expert Commissioner marked as Ext.X1. Commissioner in his report given details of the units as follows :
1. Compressor : Not working (only moving part in the system.
It is known as the heart of the system.
2. Condenser : Seems to be good working condition
3. Evaporator (Freezer ): Seems to be good working condition
4. Cabinet (Body)
1. Door : The door is not properly fitted. It is hanging,
that is why the door lock is not functioning.
Now the unit is not working. If the unit is in
working condition, continuous opening and
closing of the door, the hanging percentage will
increase beyond a limit, the result is that, it is
not close properly.
2. Rear side of the cabinet
: The rear side of the cabinet (condenser side)
sheet fitted not properly. So it will make noise
when the unit is functioning.
5. Waste Water Tray : The tray is not suitable for compressor, it is
not mounted properly.
Commissioner also has specifically mentioned to note that “If any part of the system will replace or repair, will not get the original perfection because the factory assembling does not attained by an ordinary workshop.”
The expert commissioner entered into box and adduced evidence as PW2. He has stated that he is a Senior Instructor in I.T.I. Kannur working as a teacher in Refrigeration and Air Condition Department; he is conversant with mechanism and refrigeration. Commissioner informed the opposite parties the date and time regarding the inspection but they were not present at the time of inspection. Commissioner further stated that he has attempted to test the system by passing prescribed voltage of electricity but the whole system of supplying electricity was out of order. In a system like this the cabinet sheet has to be fitted properly. He states that the sheet is shaking. He further stated that the door of the refrigerator couldn’t be locked and water hay also not properly fitted. Commissioner has also stated the maximum retail price of the fridge in question is ` 10,400. In cross examination he had deposed that the information regarding inspection has been given through telephone. He was cross examined in length but opposite party could not succeeded to bring out anything contrary to his report. His evidence made it clear that perfect functioning is not possible even if repaired. In short as per the report of the Expert Commissioner the fridge was in default and merely replacing or repairing a part will not make perfection to the system. In other words the defects cannot be cured by mere repair.
1st opposite party did not adduce any evidence before the Forum in order to substantiate this contention. 1st opposite party filed version but it is of settled position of law that mere pleading is not an evidence. Opposite Parties No.2 to 4 did not even made appearance before the Forum. Opposite parties has taken a negative approach in conducting the case. The available evidence makes it certain that it is not easy for the opposite parties to substantiate their contention disproving the allegations of the complainant. So the negative approach on the side of the opposite parties is not without reason. Non-appearance of opposite parties No.2 to 4 even on serving notice by publication, and keeping away from adducing evidence neither oral nor documentary on the side of 1st opposite party is quite favourable to complainant.
In the above circumstance with available evidence adduced by complainant and Ext.X1 commissioner’s report and oral evidence of Expert Commissioner we are of opinion that the fridge purchased by the complainant from opposite parties is defective which is not repairable. Taking into consideration that the complainant was not able to use the fridge from the very outset we find that there is grave deficiency in service on the part of opposite parties and they are jointly and severally liable to refund purchase price ` 10,400 and the cost of this proceedings including the cost of shifting charges of the fridge, commission’s remuneration, paper publication, witness batta etc. Complainant is also entitled for an amount ` 3000 as compensation. Hence we order opposite parties to refund ` 10,400 as the price of the fridge and to pay an amount of ` 3,000 as compensation with cost of ` 2500. On receiving the amount complainant has to return the defective fridge. Hence issues 1 to 3 are answered in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing the opposite parties to refund complainant ` 10,400 (Rupees Ten Thousand Four Hundred only) as price of the fridge and to pay an amount of ` 3,000 (Rupees Three Thousand only) as compensation together with ` 2,500 (Rupees Two Thousand Five Hundred only) as cost of this proceedings within one month from the date of receipt of this order failing which opposite parties are liable to pay interest at the rate of 12% from the date of filing of the complaint. The complainant has to return the defective fridge, after receiving the amount. The complainant is entitled to execute the order on the expiry of 30 days.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the complainant
A1. Warranty card dated 15.03.08.
A2. User guidelines.
A3. Guidelines.
A4. Bill dated 10.05.10
A5. Bill dated 25.07.10.
A6. Discharge card
A7. Outpatient record
A8. Outpatient record
A9. Outpatient record
A10. Attested copy of investigation report from Pariyaram Medical
college.
A11. Service card and cash memo.
A12. Service card and cash memo.
A13. Copy of lawyer notice.
A14. Acknowledgement card.
Exhibits for the opposite parties
Nil
Exhibits for the Court
X1. Inspection Report
Witness examined for the complainant
PW1. Complainant No.2
PW2. Sudhakaran V.
Witness examined for the opposite parties
Nil
/forwarded by order/
Senior Superintendent
