D.O.F. 04.05.2009

                                          D.O.O. 12.08.2011

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 12^th day of August,  2011.

C.C.No.108/2009

James Joseph,    

S/o. Joseph,

Palliparambil House,                                  :         Complainant

Thirumeni, P.O. Thirumeni,

Kannur District.

(Rep. by Adv. K. Gopakumar)

1. M/s. Coolrite,                               

    Near Training School,                                       :         Opposite Party

    Kannur – 2

2. Voltas Limited,

    Kshema Building,

    Door No.39/3608,

    M.G. Road, Ravipuram,

    Ernakulam, Kochi.

    PIN : 682 016

(Rep. by Adv. K. Vinod Raj)

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace the freezer with a new one with ` 45,000 as compensation and cost.

The case in brief of the complainant is that he had purchased a Volta’s Colb bell chest Freezer having 405 litre capacity from 1^st opposite party for ` 23,625 on 04.07.2008 and 2<sup>nd</sup> opposite party is the manufacturer of the same.  The complainant had been used the freezer as per the guidelines of opposite parties.  On 10.04.2009, the complainant had stored beef worths ` 25,000 anticipating the demand in Easter times.  On the very same day at evening, when he opened the Freezer, it was seen that the meat become rotten and immediately he tried to contact 1^st opposite party, but office of the opposite party was closed and on the next day morning he contacted the opposite party over telephone and assured that they will call back and they have not done so and whenever the complainant tried to call the 1^st opposite party, he purposefully disconnected the phone. Because of the defect of the Freezer, the complainant was constrained to close his shop and on 17.04.09 he personally contacted the 1^st opposite party and intimated the complaint and on 21.04.09 the freezer was taken to the office of 1^st opposite party for repair.  But the same was not returned till 29.04.09 and hence the complainant inspected the Freezer at 1^st opposite party’s workshop and it was found that the body of the Freezer is damaged and has not carried out the repairing work.  Huge loss was sustained by the complainant since he stored large quantity of meat anticipating the sale during Easter and Vishu.  The actual loss to the decay of meat comes      ` 25,000.  He had lost his daily business and business on special day and had suffered so much of mental as well as physical hardship.  The complainant had lost ` 300 as his daily income and assess ` 10,000 as cost for loss of business on special days and ` 10,000 for his mental agony.  Hence this complaint.

In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version.

          1^st opposite party filed version admitting that he has sold the freezer to the complainant and after sale service is being done by the authorized service centre of Voltas by name M/s. Cool line, Air conditioner and refrigerator, Aanayiduku, P.O. Thana, Kannur-12.   As per the request made by the complainant one mechanic from the above institution inspected the freezer and taken it into the above institution for repair.   The 1^st opposite party has never inspected the freezer and had not taken it for repair.  The 1^st opposite party is not doing any after sales service.  The complainant had purchased the above freezer after verifying and his self satisfaction.  The above said freezer was taken away by the complainant after repair.  So there is no deficiency of service on the part of 1^st opposite party and 1^st opposite party is not liable to any fault caused to the complainant and hence complaint is liable to be dismissed.

2^nd opposite party also filed version contending that complainant is not a consumer as per the Consumer Protection Act.  The complainant is using the freezer for commercial purpose and hence the complainant is liable to be dismissed in limine.  The 2^nd opposite party admits that the complainant had purchased a Freezer made up by Voltas.  They further admits that the complainant had reported a complaint with opposite party on 21.04.09 and the same was rectified on 22.04.09 and signed the service report.  The complainant has not suffered any business loss.  The 2^nd opposite party denies the averment that freezer has inherent manufacturing defect and the minor complaint reported by the complainant was rectified by the service personnel of 2^nd opposite party.  The averment that the complainant has suffered ` 45,000 as loss is absolutely false and has not sustained any loss and hence the claim for compensation is baseless and unsustainable.  The minor defect pointed out by the complainant were rectified by opposite party and hence the complainant is not entitled to replacement and hence the complaint is liable to be dismissed.

Upon the above contentions the following issues have been raised for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency of service on the part of opposite parties?

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consists of oral testimony of PW1 to PW3 and Ext.A1 to A3.

Issue No.1

          The 2^nd opposite party contended that the complainant is not a consumer since he had purchased the freezer for commercial purpose.  Admittedly the date of purchase of the machinery is 04.07.2008 and Ext.A1 proves the same and as per Ext.A3 it has a warranty of one year.  That is the warranty will cover from 04.07.08 to 04.07.09.  Admittedly the machinery becomes defective during April, 2009, ie within the warranty period itself.  It is a well settled position of law that even if the machinery used for commercial purpose become defective during warranty period, complaint is maintainable before the Forum.  Moreover, the complainant has a case that he is conducting cold storage for his livelihood by means of self employment and due to defect of the Freezer he was constrained to stop his business for a while.  In Anil Kumar Gupta Vs Managing Director, Turing point computer Education Centre (P) Ltd, which was reported in 2003 (2) CPJ 128 it was held by the Hon’ble National Commission that commercial purpose is a specific term which is being used for the business and earning profits on large scale, but it cannot be amalgamated with the term profession Chartered Accountant or a lawyer or a doctor who are doing their profession solely to earn their livelihood if they use any apparatus or a machine which facilitates them in their work.  It cannot bracket that they are doing business on a large scale for earning huge profits.  In the present case in hand the complainant had purchased the Freezer for facilitating his business which is the means for his livelihood.  The opposite parties have not produced any documents to show that he has other means for his livelihood.  So we are of the opinion that the complainant is a consumer and hence issue No.1 is found in favour of the complainant.

Issue 2 to 4

          The complainant’s further case is that the Freezer has inherent manufacturing defect and because of this on 10.04.09, the beef meat worth ` 25,000 which was stored in the Freezer became rotten and he had suffered loss and hence he is entitled to get replaced the freezer with defect free one and to get compensation.  In order to prove his case he examined PW1 to 3 and produced documents such as cash bill, service report, warranty conditions etc.  The Ext.A1 to A3 proves that the complainant had purchased a Voltas Freezer having 405 Ltr capacity on 04.07.08 for an amount of ` 23,625 having warranty of one year and the warranty would expire on 04.07.08.  Admittedly the complainant had reported a complaint on 21.04.09, and as per Ext.A2 it was on 20.04.09.  As per Ext.A2 the freezer has a complaint of gas block and the same was admitted by the opposite party.  But the complainant contended that the freezer has manufacturing defect.  But in order to prove his case he has not taken steps to call for expert’s report. So there is no expert evidence before us to prove this.  On the other hand he deposed before the Forum that “CtX Freezer Rm³ Ct¸mÄ D]-tbm-Kn-¡p-¶p­v.”  The opposite party contended that there is no manufacturing defect and it has “a problem of gas block” and Ext.A2 service report substantiate this contention of opposite party.  So we hold the view that there is no manufacturing defect and he is using the same.

          Admittedly the complainant reported a complaint and the 2^nd opposite party admits that the complaint was rectified during April, 2009.  The complainant has a very specific case that the beef meat for    ` 25,000 which was stored in the freezer was rotten and decayed and hence he had suffered much loss both mental as well as financial.  In order to substantiate his contention,  PW2 and PW3 are examined.  PW2 is a person having a bio-gas plant at Thirumeni.  He deposed before the Forum that “2009 tF-{]n amkw A\-ym-b-¡m-c³ kao-]n-¨n-cp-¶p.  _tbm-K-ymkv ]vfmân 3 Iznâ tISmb Cd¨n kT-kv¡-cn-¡m³ sIm­p-h-c-s«-sb¶v tNmZn¨ {]Im-cT A\p-h-Zn-¨p.  AbmÄ sIm­p-h¶ Cd¨n CuÌ-dnsâ Xte Znh-kT Fsâ _tbm-K-ymkv ]vfmân kT-kvI-cn-¨n-cp-¶p.”  The PW3 is a driver and who brought the rotten meet to the PW2’s biogas plant.  He deposed before the Forum that “2009 Cu-Ì-dnsâ  ]ntä Znh-kT  ]cm-Xn-¡m-csâ sNdp-]p-g-bn-ep-ff IS-bn tISmb \ne-bn-ep-ff t]m¯n-d¨n {^m³kn-knsâ _tbm-K-ymkv ]vfmân-te¡v \in-¸n¡m³ F¯n¨p sImSp-¯Xv Rm\m-Wv.”   The evidence of this witness PW2 and PW3 corroborates the evidence of PW1 and the facts and circumstances of the case. So it is clear that the complainant had suffered loss.  The facts and circumstances along with the evidence substantiate the case of the complainant.  So we calculate the value of meat as ` 18,000 and ` 5,000 for compensation for loss of business and ` 5000 as mental agony and also the complainant is entitled for ` 1000 as cost.

          The 1^st opposite party contended that he is only a dealer and he has no liability to compensate the complainant.  The complainant has not produced any documents to shows that there is deficiency on the part of 1^st opposite party.  So the 1^st opposite party is exonerated from liabilities.  So we are of the opinion that there is deficiency on the part of 2^nd opposite party and hence they are liable to compensate the complaint and it is found that the complainant is entitled to get ` 18,000 as value of meat, ` 10,000 for compensation for loss of business and mental agony and ` 1000 as cost of this proceedings and order passed accordingly, finding issues 2 to 4 in favour of complainant.

          In the result the complaint is allowed directing the 2^nd opposite party to pay ` 18,000 (Rupees Eighteen Thousand only) as value of meat, ` 10,000 (Rupees Ten Thousand only) as compensation for loss of business and mental agony along with ` 1000 (Rupees One thousand only) as cost of the proceedings within one month from the date of order, failing which complainant is entitled to execute the order as per the provisions of Consumer Protection Act.

                           Sd/-                   Sd/-                      Sd/-                      

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Retail Invoice dated 04.07.2008.

A2. Service Report

A3. warranty card         

Exhibits for the opposite parties

Nil

Witness examined for the complainant

PW1.  Complainant

PW2.  Francis

PW3.  N.J. Suresh

Witness examined for opposite party

Nil

                                                                        /forwarded by order/

                                                                     SENIOR SUPERINTENDENT