BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th FEBRUARY 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 232/2015
(Admitted on 17.07.2015)
Khalid Bapnad,
Aged 32 years,
S/o M.S. Mohammed,
Residing at “Bapnad House”,
Talipady Village, Mangalore Taluk
…….. COMPLAINANT
(Advocate for Complainant: Sri Naveen Kumar M.G.)
VERSUS
1. Samsung India Electronics Pvt Ltd.,
Represented by its authorized officer,
Srikanta Maple MIG 719 A Sector,
Yelahanka New Town,
Petrol Bunk Road,
Bangalore.(Karnataka)
2. Adishwara India Ltd.,
Represented by its Manager,
Aditya complex,
Near KsRTC Bus Stop,
Bejai, Mangalore.
……OPPOSITE PARTIES.
(Advocate for Opposite party No.1 by Sri K.Ganesh Shenoy)
(Opposite party No. 2 Ex-parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in Refrigerator FROST FREE RT 55 K ZRSL1/XTL (Y5XZ 4ADC600390) as against the opposite parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased Refrigerator FF240 on 08.06.2013 by paying Rs. 50,600/- to opposite party No. 2. The opposite party No. 1 is the manufacturer. The said Refrigerator had warranty 1 year (12 months) from the date of purchase i.e. from 08.06.2013. After the purchase of the above refrigerator the opposite party No. 2 installed the same. The machine had worked from 08.06.2013 up to August 2013 and thereafter started to give trouble. The complainant lodged a complaint with the opposite parties. But, opposite parties failed to set right the defect 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 27.05.2015 to the opposite parties and the same was served on the Opposite Party No. 1 & 2 and in-spite of receiving same the demand of the complainant not complied. Hence above complaint filed U/sec 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. 50,600/- along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties. Opposite party No. 2 in spite of receiving version notice not appeared nor contested the case till this date, hence the opposite party No. 2 placed Ex-parte and opposite party No. 1 appeared through their counsel, but not filed version.
III. 1. In support of the complaint, Sri Khalid Bapnad, (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C4.
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 08.06.2013 from the opposite parties found to be defective?-
Whether the complainant proves that the opposite parties have committed deficiency in service?
If so, whether the complainant is entitled for the reliefs claimed?
What order?
We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii): Affirmative
Point No. (iii) and (iv). As per the final order.
REASONS
IV. 1. POINTS No. (i) TO (iv) : In order to substantiate the averments made in the complaint, complainant i.e. CW-1 filed affidavit and produced Ex-C-1 to C-4. The Ex C1 is the Tax invoice bill reveals that the Refrigerator purchased on 08.06.2013 from the opposite parties by paying Rs. 50,600/- the same was covered under warranty for 1 year from the date purchase.
However, it is seen on record that, the opposite party in spite of receiving version notice not appeared nor contested the matter, the notice and other documents i.e. Ex-C-1 is the original bill, Ex C-2 is the notice to Samsung with receipt, Ex C-3 is the notice to Adhishwara Electro world with receipt and Ex C-4 is the acknowledgments reveals that, the refrigerator had problem and it was reported to the second opposite parties but the opposite parties not attended the complaint of the complainant. The noted that the opposite parties in-spite of receiving the complaint of the complainant not responded to the complaint shows their sheer negligence. We further noted that, the opposite No. 1 i.e. manufacturer in-spite of appearing through their counsel not bothered to contest the case, and the entire material evidence placed before us are not rebutted. Therefore, we have drawn adverse inference that, the refrigerator is defective it requires no further proof.
Under the above circumstance, 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. 48,600/- as per invoice by taking back the defective refrigerator.
Generally, if the goods are having manufacturing defect is to be borne 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 defect during the warranty 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. 48,600/- along with interest @ 12% interest p.a. by taking back the defective Refrigerator. And further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order. Interest considered by this FORA
In the result, we pass the following:
ORDER
The complaint is allowed. The opposite parties refund ₹ 48,000/- along with interest at 12% p.a. by taking back the defective Samsung refrigerator and further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 29TH day of FEBRUARY 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : Sri Khalid Bapnad – Complainant.
Documents produced on behalf of the Complainant:
Ex. C1 : Original Tax Invoice Bill bearing No. 1023-351.
dated 08.06.2013.
Ex. C2 : The Office copy of the notice to Samsung with receipt.
Ex. C3 : The Office copy of the Notice to Adhishwara
Electro world with receipt.
Ex. C4 : Postal acknowledgments of opposite party
No. 1&2.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated: 29.02.2016. PRESIDENT
