BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 12 January 2017
PRESENT
SMT. C.V. SHOBHA : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.215/2016
(Admitted on 18.06.2016)
Smt. Prameela Gopal,
Aged 54 years,
W/o Late Gopal,
R/at Chethan Nagara,
Barde, Kumpala,
Kotekar post,
Mangaluru 575022.
……… Complainant
(Advocate for Complainant by Sri. SS)
VERSUS
- M/s Harsha Electronics,
Navarathna Complex,
K.S.Rao Road,
Mangaluru 575001.
Represented by its Managing Director.
- M/s Whirlpool of India Ltd,
Whirlpool House Plot No.40,
Sector 44, Gurgaon 122002,
Haryana, India.
Represented by its Managing Director.
…. Opposite Parties
(Opposite Party No.1 and 2: Ex parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA:
I. 1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging defect in Refrigerator whirlpool Refrigerator Ff 262 Fr 278 Roy PI 35 mnb as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant is purchased Whirlpool Refrigerator Ff 262 Fr 278 Roy PI 35 mnb on 14.11.2015 by paying Rs. 23,450/ to Opposite Party No.1. The Opposite Party No.2 is the manufacturer. The said refrigerator had warranty 1 year (12 Months) from the date of purchase i.e. from 27.11.2015 to 26.11.2015. Firstly the complainant purchased brand new washing machine and Refrigerator of Whirlpool brand from Opposite Party No.1 on 10.11.2015 out of the said purchase the defective goods is refrigerator. The refrigerator is double door 265 Ltrs of Rs. 23,450/. The complainant chosen purple colour but the Opposite Party No.1 delivered another color of refrigerator. Then that on 14.11.2015, the Opposite Party No.1 shown one black colour refrigerator to the complainant there is no option for her, because she had already paid the price to the Opposite Party No.1 that black color refrigerator was also several scratch marks on the handle, body and it was used one. On 15.12.2015 the complainant went to the godown of the Opposite Party No.1 and selected Black color refrigerator, and the same was delivered to the house of the complainant. After the purchase of the above refrigerator the Opposite Party No.1 installed the same. The demonstration, temperature setting, distance from wall everything installed, setup by the technicians of the Opposite Party No.1. The machine had worked from 14.11.2015 up to 28.01.2016 and thereafter started to give trouble. That after 28.01.2016 the refrigerator works, but inside the freezer, chiller the cowing effect is very slow. The complainant lodged a complainant with the Opposite Party No.1. But, Opposite Parties failed to set right the defects or replace the machine. It is stated that the refrigerator sold by the Opposite Parties is defective. Hence the complainant got issued regd lawyer’s notice dated 10.03.2016 to the Opposite Parties and the same was served on the Opposite Party No.1 and 2 and inspite of the receiving same the demand of the complainant not complied. Hence the above complainant filed before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund a sum of Rs. 23,450/ along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party No.1 and 2 by RPAD. Inspite of receiving version notice neither appeared nor contested the case before this FORA, hence, we have proceeded exparte as against the Opposite Party No.1 and 2. In support of the above complaint, Smt. Prameela Gopal, (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex.C1 to C4. Opposite Party Ex parte.
III. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that the Refrigerator purchased on 14.11.2015 from the Opposite Parties found to be defective?
- Whether the complainant proves that the opposite parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i) & (iii): Affirmative.
Point No.(iv): As per the final order.
REASONS
IV. POINTS No. (i) & (ii):
In order to substantiate the averment made in the compliant, complainant i.e. CW.1 filed affidavit and produced documents Ex.C1 to C7. The Ex.C1 is the original Bill tax invoice (credit) No.4CK05309, Ex.C2 is the original delivery charge receipts 1036220, Ex.C3 is the original Bill tax invoice (Credit) No.4CK05575, Ex.C4 is the original warranty book fill up dated 27.11.2015, Ex.C5 is the legal notice, Ex.C6 is the 2 postal receipts and Ex.C7 is the acknowledgement of Opposite Party No.1. It reveals that, the refrigerator had problem and it was reported to the Opposite Parties. The complainant further submits that, the Opposite Party No.1’s technician came and replaced the timer first, and then changed the thermostat part on 09.02.2016. But the defect of the refrigerator remained unchanged. Now, absolutely no response and not attended the complaint of the complainant. Further, noted that the Opposite Parties inspite of receiving the complaint of the complainant not responded to the complaint shows their sheer negligence. We further noted that, the Opposite Party No.2 is the manufacturer also not appeared before the forum hence placed ex parte and the entire material evidence placed before us are not rebutted. Therefore we have drawn adverse inference that, the refrigerator is defective is requires no further proof. Further, initially the complainant choose a purple colour refrigerator which was there at the time of her choice, on the promise of sending the said fridge the Opposite Parties No.1 collected the price of the same. But send deferent colour. Later when the complainant came to shop it is found but, the Opposite Party No.1 told that it was sold to some other customer. The complainant was constrained to make some alternative compromise for the reason the money paid to the Opposite Party No.1 is not retuned. Hence she choose another fridge. That also contained scratch and appeared a second hand one. Third, fourth fridge all found defective. It appears to the complainant that the exchanged old fridges are after patch up work given to the complainant. This is evident from Ex.C1 and C3, that go on change the same. Here the section 2(1)r(1)(iii) of C.P.Act falsely represents any second hand, reconditioned as new goods. That there is a duty of the Opposite Party No.2 that within warranty period bound to repair or replace the unit found functioning defectively. But none of the technician of the Opposite Party No.2 also attended the complainant’s problem. Hence, Violated warranty conditions and comes under section 2(1)r(1) (vi),(vii), (viii) of C.P.Act. Hence we come to a proper conclusion that the Opposite Parties are sold defective goods to the complainant and also proves that there is a deficiency of service by the Opposite Parties. It also leads the Opposite Parties played unfair trade practice to promote their business. Hence, the point No. (i) and (ii) is in affirmative.Point No.(iii): Under the above circumstances, we hold that the refrigerator is proved to be defective within the warranty period and Opposite Parties are liable to refund the entire amount because Opposite Parties have failed to provide on timely service. Therefore, the Opposite Parties liable to refund the entire amount of Rs. 23,450/ as per invoice by taking back the defective refrigerator. Generally, if the goods are has manufacturing defect is to be born by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defects during the warranty time do not escape liability towards the manufacturing defect found in the refrigerator. As we know, the contract through dealer/service provider, privity of contract is with them. To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the refrigerator in this case. In view of the aforesaid reasons, we hold that, the Opposite Party No.1 and 2 are jointly and severally shall refund the cost of the refrigerator Rs. 23,450/ by taking back the defective refrigerator. And further to pay of Rs.10,000/ as damages to the complainant for the inconvenience and harassment caused. Further to pay Rs. 5,000/ as cost and litigation expenses incurrent by the complainant. Payment shall be made within 30 days from the date of receipt of copy of this order.
Point No. (iv): In the result, we pass the following:
ORDER
The complaint is allowed in part. The Opposite Parties No.1 and 2 are jointly and severally shall refund the cost of the refrigerator to pay sum of Rs. 23,450/(Rupees twenty three thousand four hundred fifty only) by taking back the defective refrigerator. And further to pay sum of Rs.10,000/(Rupees ten thousand only) as damages to the complainant for the inconvenience and harassment caused. Further to pay sum of Rs. 5,000/(Rupees five thousand only) as cost and litigation expenses incurrent by the complainant. Payment shall be made within 30 days from the date of receipt of copy of this order.
In case of failure to pay the above mentioned amount with in stipulated time, the Opposite Party No.1 and 2 are directed to pay interest at the rate of 12% p.a. on the above said total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.
(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 12th day of January 2017.)
MEMBER PRESIDENT
(SMT.LAVANYA M. RAI) (SMT. C.V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Smt. Prameela Gopal.
Documents marked on behalf of the Complainant:
ExC1: 10.11.2015: Tax invoice (Credit) No.4CK 05309(original).
ExC2: 10.11.2015: Delivery charge receipt S10 36220(original).
ExC3: 14.11.2015: Tax invoice (credit) 4CK 05575 (original).
Ex.C4: Usage Manual Book (original).
Documents produced on behalf of the Complainant:
No.5: 10.03.2016: office copy of Advocate Notice.
No.6: 10.03.2016: postal receipt.
No.7: 10.03.2016: postal receipt.
No.8:11.03.2016: postal Acknowledgement card signed by Opposite Party No.1.
No.9: 17.03.2016: Delivery track of Opposite Party No.2 endorsement from postal department.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents Marked on behalf of the Opposite Parties:
Nil
Dated: 12.01.2017. PRESIDENT
