Orissa

Kendujhar

71/2014

Khurshid Paiker - Complainant(s)

Versus

1. M/S. Doordarsana Represented through its partner Shri Rahul Roy, Main Road Barbil, - Opp.Party(s)

A.K. Pattnaik & R.R. Rana

30 Oct 2015

ORDER

IN THE COURT OF THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

CONSUMER COMPLAINT CASE NO. 71 OF 2014

Khurshid Paiker, aged about 60 years,

W/o- Syed Abdul Rahim, Represented through

her son namely Syed Muzaffer Jamil,

aged about 39 years, S/o- Syed Abdul Rahim,

At- Opposite to Bank of India,

 Main Road Barbil, Post/P.S- Barbil,

Dist- Keonjhar, Pin- 758035, Odisha………………………………….Complainant

                               Vrs.

1. M/s. Doordarsana represented

through its partner- Shri Rahul Roy,

Main Road Barbil, Post/P.S- Barbil,

Dist- Keonjhar - 758035, Odisha

2. The General Manager,

Whirlpool of India Limited,

Plot No. A-4, M.I.D.C, Ranjangaon,

Taluka Shrur, Dist- Pune, Maharastra- 419204

3. The Service Manager,

Whirlpool of India Limited, Plot No.1,

Block No.1 & 2, BMC Bhawani Commercial Enclave,

Sahid Nagar, Bhubaneswar,

Pin- 751007, Odisha …………………………………………………………Op. Parties                                               

 

PRESENT: - Shri A.K. Purohit, President

                     Mrs B. Giri,          MEMBER (W)

                     Sri S.C. Sahoo,     MEMBER

 

 Advocate for the complainant- Sri A.K. Pattnaik & R.R. Rana

Advocate for the Op1                - Set exparte

Advocate for the Op 2 & 3        - Sri Patitapaban Nath & Associates

______________________________________________________________________  

Date of Hearing - 29.09.2015                                              Date of Order- 30.10.2015

______________________________________________________________________

Sri S.C. Sahoo, Member-This is a complaint praying for a direction to Opp. Parties to replace the defective refrigerator Whirlpool Proton Series 415 DLX with a new one of same model or next higher model and to pay compensation of Rs.40,000/- for financial loss, mental agony & harassment and Rs.10,000/- towards cost of litigation.

    The brief facts of the case are that the complainant has purchased one refrigerator of Whirlpool Proton Series 415 DLX model on payment of Rs.41,500/- from Op-1 who was the authorized dealer of Op-2 and Op-3 was the service center who render services after purchase of Whirlpool brand products during & after warranty period. The alleged refrigerator in April/May 2013 started showing defects like assemble of frosts, failure of auto drainage, low cooling, leakage of water due to disturbance in compressor though the product was a frost free one and the complainant drew complaint to Ops through series of correspondences. After complaining through series of correspondences the Ops deputed their service engineer in the month of June 2014 but the defects could not be eradicated by the technical person and again Sr-Engineer deputed but failed to repair the compressor as well as to remove the weak compressor and in between the complainant suggested to purchase another Refrigerator of higher model worth of Rs.47,215/- (Whirlpool Pro- 425 EIT Alpha steel) since the alleged series of model were defective and vanished from the market which proved Unfair Trade Practice by Ops while the complaint proposes to purchase higher model instead of purchased model, the Op-2 imposed an arbitrarily calculation of depreciation cost & transportation charges on the complainant and given up her hope and hence this case -

In support filed:

1. Photocopy of Invoice No.161, dt.12.08.2011 - 1 sheet
2. 5 Years (4+1) yrs. warranty card dt.12.08.2011 - 1 sheet
3. Complaint details through E-mail from 29.09.13 to 18.07.14 - 1 sheet
4. Reminder - I Series - 8 sheets
5. Reminder - II Series - 4 sheets         

     After service of notice to the Ops, Op-2 & 3 appeared and filed their written version. But the Op-1 set exparte on 15.05.15 though this Op received the notice on 13.12.14. The Op-2 & 3 in their written version stating that the complaint is vexatious lacking materials and particulars and barred by limitation U/s. 24 (A) of C.P. Act 1986. Further the Op-2 & 3 stated that the said Refrigerator was also installed by the Engineer of the company and working demonstration was made in the residence of the complainant with an ulterior motive harassing this Op-2 & 3 in order to get a new Refrigerator and the warranty card clearly elaborate rectification of any with the machineries can be remove and replace with new parts and the service engineer inspected the same and found in good workable condition. Hence, the present case was being frivolous and vexatious is liable to dismissed.

     Heard, the learned counsel for the complainant’s end and taking into consideration of the written version filed by the Op -2 & 3 and on perusal of available materials in records. It is not disputed that the complainant has purchased the said refrigerator brand of Op-2 & 3 from the Op-1 who was set exparte whole time during the subsistence of the complaint. The learned counsel for the complainant submitted that the alleged refrigerator got detected by starting assembling frosts, failure of auto-drainage, low cooling and leakage of water due to disturbance in compressor within the warranty period as given for five years of which was reported to this Op-2 & 3 through various correspondences through E-mails. But this Op-2 & 3 does not turn up to the grievance nor attended to rectify the defects of the refrigerator.

    On the other hand on perusal of available documents/ materials as well as the written version filed by Op-2 & 3 taken into consideration and it is observed in 2(1) (F) of C.P Act 1986, “Defect” means any fault, imperfection of short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any Law for the time being in force or (under any contract, express or implied or) as is claimed by the trader in any manner whatsoever in relation to any goods. It is seen from the purchase invoice and warranty card filed by the complainant that the complainant had purchased the alleged refrigerator from the dealer Op-1 vide invoice No.161      dt.12.08.2011 on payment of price. It is also seen that the complainant has lodged his grievance relating to defect. It is also an admitted fact that Op-2 & 3 have not attended the grievance not even rectified the defects of the refrigeration consequent upon several reminders sent by the complainant. Therefore it is assumed that the standard of the alleged refrigerator cannot be said good standard and is free from any defect. On the other hand the Op-2 & 3 have not produced any evidence to prove their case not have filed any cogent evidence/ affidavit evidence of the technical service engineer to prove that the alleged refrigerator was defect free goods. Hence, the Ops 1, 2 & 3 are under obligation to replace the alleged defect refrigerator of the complainant.

    Under the aforesaid discussion and materials available in record the Ops are liable to replace the defective refrigerator.

    Hence, it is ordered to the Ops to replace the alleged defective refrigerator of the complainant with the same value and model with a fresh warranty on receipt of defective refrigerator from the complainant if available in the market or if not available with the Ops refund the purchase price of the defective refrigerator to the complainant within 30 days from the date of receipt of this order. The Op-2 & 3 are also further directed to pay Rs.2000/- towards compensation and Rs.1000/- towards litigation cost. Failing which the entire amount i.e. purchase price and cost & compensation will carry an interest @ 10% per annum till finalization of award amount.

                                 The case is accordingly disposed of.

 

                                                               I agree                                    I disagree

 

     (Sri S.C. Sahoo)                              (Smt. B. Giri)                           (Sri A.K. Purohit)                    

           Member                                    Member (W)                                 President                                

 D.C.D.R.F, KEONJHAR                    D.C.D.R.F, KEONJHAR                 D.C.D.R.F, KEONJHAR

 

                                                                                        Dictated & Corrected by me

                                                                                             (Sri S.C. Sahoo)                                                                                          MEMBER, DCDRF, KEONJHAR

 

My Opinion is attached in separate sheet

           Sri A.K. Purohit, President

SHRI A.K. PUROHIT, PRESIDENT

1. I have gone through the order prepared by Hon’ble member Sri S.C. Sahoo. I am not agreed with the same for the following reasons.
2. I t is seen from the Complaint Petition that, one Syed Muzaffer Jamil has filed this Complaint Petition on the basis of a Letter of Authorization, authorized by Khurshid Paiker, to whom the refrigerator was sold. Sec.12 of the Consumer Protection Act provides the manner in which Complaint shall be made. According to the said provisions of law Syed Muzaffer Jamil cannot prefer this Consumer Complaint on the basis of a Letter of Authorization, since he is not a consumer. Hence the Complaint Petition is not maintainable.
3. Coming to the merits of the case. It is seen from the Xerox copy of the warranty card that the condition in the said warranty is that, “Whirlpool offers the original purchaser 1 year comprehensive warranty and 4 years additional warranty on the compressor”. Admittedly the refrigerator was purchased on dt.12.8.2011 and defect was found in the month of April/May 2013. Therefore the warranty covers only the compressor of the product. There is no evidence available on record to show that, there is inherent defects in the compressor which is liable to be replaced. Law is well settled that, when a product is repairable it cannot be replaced. Therefore in this case there is no material either by way of expert evidence or any other evidence to show that there is inherent defects in the compressor of the refrigerator which is replaceable.

         Hence, there is no merit in this case and the same is not maintainable.

                              Accordingly the case is dismissed. 

 

                                                                                    (Sri A.K. Purohit)

                                                                                          President

                                                                                 D.C.D.R.F, KEONJHAR