DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

                C.C. CASE NO. 13   OF _2017

DATE OF FILING : 31.1.2017               DATE OF PASSING JUDGEMENT: 09/08/2018

Present                                :   President       :   Ananta Kumar Kapri

                                        Member(s)    :    Subrata Sarker  & Jhunu Prasad                                                                  

COMPLAINANT              : Kabita Ghosh, Vill. Salepur (Padmapukur), P.O & P.S Baruipur, Kolkata – 144.

- VERSUS  -

O.P/O.Ps                               :  1. Rama Enterprise, Ganga Jawara Main Road, Dhali Para, Panchpota, Garia, Kol-152, P.S Sonarpur.

                                                 2.    Great Eastern Trading Co. 433, Garia Main Road, P.S Sonarpur, Kol-84.

                                                3.   Godrej & Boyce Mfg. Co. Ltd. Block GN, Sector-5, Salt Lake, Kolkata – 91.

___________________________________________________________________

                                                            J  U  D  G  M  E  N  T

JHUNU PRASAD, LADY MEMBER

Filtering out the unnecessary details in the complaint, the complainant’s case may be summarized thus :-

In iconic, the case stated in the complaint, is that, the complainant had purchased one refrigerator being No. GDP-195.V2 zop,185 Ltr, from the Opposite Party No.2 M/S Great Eastern Trading Co. 433, Garia Main Road, P.S.- Sonarpur, Kol – 700084 on 15.9.2009 at total price of Rs. 9,400/- along with 10 years Rust Free warranty.

But after 6 years of using the said refrigerator, it has been found that the door and body of the refrigerator has been rusted. Immediately the complainant informed the Opposite Party No.3 i.e. the manufacturer company regarding the condition of the said refrigerator. The Opposite Party No.1 inspected the refrigerator and assured to remove rust upon the said refrigerator and also charged of Rs.275/- for inspection charge vide receipt No. TCR No. 1469 dated 26.11.2015.

Thereafter, the Opposite Party No.1 inform the complainant their incapability due to shortage  the refrigerator of the same model and colour and also inform  that they are ready to take back the existing refrigerator and worth value @ 15% of purchase value of the said refrigerator which will be adjusted upon  the  new purchase. But the complainant did not agree to accept that proposal.

Thereafter, the complainant lodged a complaint before the C.A.F.B.P. 24 pgs (s) regional office Baruipur, Kolkata- 144. The C.A.F.B.P. Baruipur sent a notice to the Opposite Parties for mediation of the matter, but the Opposite Party did not appear there.

Hence, the complainant file the instant case for getting relief as prayed for.

Admitted the case and issued notices upon the Opposite Parties.

Notices was delivered successfully upon the opposite parties.

Despite services of notices the Opposite Party No. 1 and 3 did not appear to controvert the case by way of filing written version, so the case is heard ex-parte against the Opposite Party No.1 and 3.

After receipt the notice the Opposite Party No.2 appeared and contested the case by way of filing written version denying all contentions and material allegations made by the complainant in the petition of complaint and stating inter alia, that the case is not maintainable.

 The specific case, as stated by the Opposite Party No. 2 , in terse, is that, admittedly the complainant purchased the refrigerator on 15.09.2009 from  the Opposite party No. 2, but the warranty of the said refrigerator was undertaken by the manufacturer i.e. the Opposite Party No. 3 Godrej Boyec. Though the problem has been arose after the lapse of 7 years from the purchase of the said refrigerator and therefore only the manufacturer can be questioned not the Opposite Party no 2.

 The Opposite Party No. 2 sold the said refrigerator with complete sealed and packed condition to the complainant , but the complainant never informed to the Opposite Party No.2 regarding the issue in question.

The Opposite Party No.2 also stated that mere selling of refrigerator  by the Opposite Party No.2 is no binding to provide after sale services to the complainant and also not undertook to provide any warranty rather it is the manufacturer who undertook the warranty terms and conditions promised to provide services to the complainant during the warranty period. It is the duty to provide services by the manufacturer i.e. the Opposite Party No.3 to take appropriate step for rust free of the refrigerator. The Opposite Party No. 3 manufacturer promised of provides ‘Rust free Services’ of the said refrigerator. In the purchase invoice it has been indicated and duly undertaken by the complainant that “Goods once sold cannot be taken back or exchange”.

In the purchase bill dated 15.09.2009 the complainant also undertook “I as a customer do agree that warranty/guarantee offered on goods will be undertaken by the manufacturer only and under no circumstances your company will be liable for any complaints whatsoever. So, allegation made by the complainant is not lies upon the Opposite Party No. 2.

Therefore, there is no deficiency of service and unfair trade practice committed on the part of the Opposite Party No. 2 for which the complaint filed by the complainant is liable to be dismissed in limini against the Opposite Party No. 2.

POINTS FOR DECISION:-

1) Is the complainant a consumer or not?

2) Is there any deficiency of service on the part of the OPs.?

 3) Whether the complainant is entitled to get any relief as prayed for?

DECISION WITH REASONS:- 

            At the time of argument the complainant and the Opposite Parties have filed affidavit –in- chief, BNA, and some Xerox copies of documents to support of their claim.

All points are taken up together for consideration for the sake of convenience and brevity.

We  have carefully considered and scrutinized the submissions made before us by the Ld. Advocate for the complainant and the Ld. Advocate for the Opposite Party No.2 and also critically perused all the material documents on record.

On overall evaluation of the argument advanced by the Ld. Advocates of both the Parties, and on critical appreciation of the case record, it is clearly evident and also admitted by the both parties that the complainant had purchased one  refrigerator being No. GDP-195.V2 zop,185 Ltr, from the Opposite Party No.2 M/S Great Eastern Trading Co. 433, Garia Main Road, P.S.- Sonarpur, Kol – 700084 on 15.9.2009 at total price of Rs. 9,400/- along with 10 years Rust Free warranty. The complainant alleged that the said refrigerator was getting rusted on the door and the body after 6 years from the purchase of the said refrigerator which was within the warranty period. On 25.11.2015 the complainant informed the Opposite Party No.3 and requested to remove rust from the refrigerator. The Opposite Party No.3 sent their mechanic i.e. Opposite party No.1 to inspect the said refrigerator and charged Rs. 275/- as service charge and also admitted the aforesaid dispute and informed the complainant that required spare part is an obsolete one and no longer available and offered a new refrigerator subject to exchange the said refrigerator in question wroth @ 15% of purchase value of the new refrigerator and closed the complaint from their end. But the complainant did not accept  with that proposal.

Manifestly, the fact remains that, the Opposite Party No.2 stamped and signed on the warranty card. Therefore, it is prove that the Opposite Party No. 2 issued warranty card in favour of the complainant on behalf of the manufacturer. In the warranty card it has been clearly mentioned that “New Godrej Refrigerator comes with a unique 10 years Rust protection plan” and it is also mentioned that “This warranty is valid only if  it is filled in and stamped by our authorized dealer on the date of purchase”

Anyhow, being the authorized dealer the Opposite Party No. 2 can’t deny their part of obligation moreover the opposite Party No.2 should have taken necessary action to remove or resolve the dispute of the said refrigerator with the Opposite Party No. 3 manufacturer.

Moreover, the allegations made by the complainant never challenged by the Opposite Party No.1 and 3 nor even the Opposite Party No.1 and 3 ever  appeared to contest the case before the Forum. Therefore, there are no reasons to disbelieve the unchallenged testimony of the complainant.

Therefore, from the discussion made above the Forum inclined to hold that all conduct of the Opposite Parties are deliberately failed their commitments which tantamount to gross deficiency in  service and unfair trade practice within the per view of section 2(1)(g) and section 2(1)(r) of C.P. Act 1986.

So, commonly the Forum has no hesitation to hold that all the Opposite Parties, being the seller of the Product, manufacturer and service centre are jointly and severely liable to remove rust from the said refrigerator at any cost.

As because the complainant used the said refrigerator for long 6 years without any interruption, the complainant is not entitle to get the entire cost of the same.

As the said refrigerator is within the warranty coverage the opposite Parties are liable to repair the said refrigerator without repairing charges and replace the damage parts free of cost. But, if the opposite parties failed to repair the same due to non-availability of spare parts then they are liable to replace the same with a new one.

In light of the above analysis, it is concluded that the complainant is  proved his case and is entitled to get the relief as prayed for and consequently the points for consideration are decided in affirmative.

In short, the complainant deserves success.

In the result, we proceed to pass

                                                  ORDER

That the complaint case No.13 of 2017 filed by the complainant Kabita Ghosh be and the same is allowed on contest against the Opposite Party No. 2 and ex-parte against Opposite party No. 1 and 3 with cost of Rs.5,000/- only payable by the Opposite parties to the complainant.

That the Opposite Parties jointly and severally are directed to remove the rust from the said refrigerator of the complainant within the period of one month from the date of this order but if the opposite parties failed to repair the same due to non-availability of spare parts then they are liable to replace the same with a new one.

That the Opposite Parties jointly and severally are also directed to pay of Rs.5,000/- as compensation for mental agony and harassment and Rs. 3,000/- for litigation cost to the complainant within one month from the date of this order.

In the event of non compliance of this order by any of the Opposite Parties the complainant shall be at liberty to execute this order in accordance with the provisions of law.

Let copy of this order be supplied to the parties free of cost, when applied for.

Member                                Member                                                      President

Dictated and Corrected by me

                        Member