Date of Filling:      03.05.2016

                                                                                                                       Date of Disposal:  09.07.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.22/2016

MONDAY, THE 09 DAY OF JULY 2018

P.Janardhanam,

S/o.Palayam,

Plot No.651,Annapoorna Hotel Back side,

Bye pass Road,

Kakkalur,

Thiruvallur - 602 001.                                                    ….Complainant.

                                                        //Vs//

1.The General Manager,(Next Head Office)

    Techweb Centre, Ground Floor,

    New link, Jogeshwari West,

    Next to Raigad Military School,

    Behram Begh, Oshiwar,

    Mumbai - 400 102.

2.The Manager,

   Next Retail Shop Branch,

   No.29, Rajaji Salai,

   Thiruvallur -602 001.                                                     …… Opposite parties.

This complaint has come before us finally on 29.06.2018 in the presence of the Thiru. A.R.Poovannan, Advocate on the side of the complainant and 1^st opposite party was reminded Ex-parte for non appearance and M/s. S.Suresh  Counsel for the 2^nd opposite party and having perused the documents and evidences on the side of the complainant and 1^st opposite party, this Forum delivered the following:-

ORDER

PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of Consumer Protection Act.1986 against the opposite parties for seeking relief to replace a new refrigerator and to pay a sum of Rs.1,00,000/- towards compensation for causing mental agony, hardship, strain, inconvenience and monetary loss due to the deficiency in service of the opposite parties with cost.

2.The Brief averment of the complaint as follows:-

The complainant purchased a refrigerator from second opposite party’s retail shop in the model number WPC-FF23, on 10.08.2013, for a sum of Rs.17,500/- (Bill No.0431/10480) and also paid a sum of Rs.350/- for the refrigerator stand.  The complainant submits that the refrigerator operation was good condition for the past two years from the date purchase.

3. That on 07.07.2015, it was found that the refrigerator was not functioning.  On the very next day, the complainant approached the second opposite party’s retail shop and made a complaint regarding the repair.  The retail shop directed a service centre (Venus Refrigerator) located at plot No.2713,TNEB, Kakkalur to check with the repair.  The person who was assigned to provide service made a statement that the refrigerator of the complainant is not a brand new one, and it is an old stock.  Further, he told that the motor and the other instruments of the mechanism of the refrigerator are pre used one, and further no serial number of the motor mentioned and so it’s a old motor as he stated.

4. Then, the complainant approached the second opposite party and asked to check the refrigerator and in turn, stated that the compressor and Motor of the refrigerator stopped working and a sum of Rs.6,000/- is required to repair the fridge.  The complainant then approached the second opposite party and made a  complaint once again and wanted to meet the customer care of the retail shop, the person in charge of the retail shop directed complainant check SPS shop,  Thiruvallur, wherein the proprietor will be there, but he was not there.

5. That one week later, on 17.07.2015 another 2 persons named Mr.Suresh, and Mr.Sharath came down for repair.  They informed that the gas has to be filled for the functioning of the refrigerator and it will cost Rs.2,000/-.  The complainant then paid the said amount even then the refrigerator was not working.

6. The Complainant made several attempts contacting the second opposite party for seeking customer care advice.  On the advice of the retail shop service provider, the complainant checked with the E.B. and tried to solve the defect.  Even after locating and solving that problem, the refrigerator was not working.  The complainant further made attempt with the second opposite party and complained his grievance, but the second opposite party replied stating that the refrigerator was used for a period of one year and so it could not be changed and his attempt ended in vain.

7. That, so far the complainant spend Rs.2,000/- for on the repair work of the refrigerator which has got guarantee and warranty, because of the wrong instruction and the guidance of the second opposite party.  The act of the opposite party amounts to gross deficiency in their service that the complainant therefore left with no option sent legal notice to the opposite party on 09.01.2016. The opposite party though had received the notice had not replied.  The complainant is thus obliged to file this complaint for damage and compensation. That because of the deficiency in service by the opposite party the complainant and his family is put to great mental agony and hardship.  Hence, this complaint.

8. The contention of written version of the 2^nd opposite party is briefly follows:-

The complaint is not maintainable in law and on fact.  The allegations there in are not true and are denied.   The 2^nd opposite party is not the owner having take over the company, only in 2015. He was not the owner of the company at the time of sale.

9. It is true the complainant purchased the product from previous owner.  The complaint is bad for non joinder of necessary party.  The whirlpool refrigerator which was purchased from whirpool company, it is manufacturer and shall be added as a party.  This court has no jurisdiction to try this case.  Since the warranty card, clearly mentions, if any dispute arises out of their product, the jurisdiction is only at Delhi, as per clause 13.  The 2^nd opposite party is only a dealer and not a manufacturer.  If any fault arises in the product, the company must be added as a party.  As a good will, 2^nd opposite party rectified the complainant’s relative was then the sales person in that shop, he suggested that they have a showroom (Display) product refrigerator at the discounted price.  The complainant inspected the product and after knowing fully well that purchase it.  The cost of the refrigerator is Rs.29,000/- since it is a show room piece which was kept for a long time, the 2^nd opposite party sold it for a discounted price at Rs.19,000/-.  Since the complainant was his relative, it was again bargained and reduced for Rs.17,500/-.  The stand was not included.  He purchased refrigerator separately and the stand separately.  Therefore, the complainant has not come to court with true facts.  Here is the complainant who suppressed all the material fact and not approached this Hon’ble Forum with clean hands.  It was purchased from different seller.  This opposite party has purchased the company only in the year 2015.  Complainant cannot complaint as against this opposite party.  There is no deficiency of service by this opposite party.

10. The complainant admitted that the refrigerator is in working condition for past 2 years.  The warranty covered for refrigerator is one year and for compressor, it covers for 4 years on the bases of terms and condition.  The opposite party deny that on 07.07.2015 the refrigerator was not functioning and the next day complainant approached 2^nd opposite party and made complaint regard to complainant to approach the service centre.  The cause of action mentioned is false.  This opposite party denies that the motor and the other instruments mechanism of the refrigerator are pre-used one and further, the motor has no serial number mentioned.  This opposite part denies that the complainant approached this opposite party and said about the defects stated by service provider.

11. It is true that the compressor was at fault, due to electric fluctuation.  The 2^nd opposite party intimated him that it will not cover under warranty and it will cost around Rs.5,000/- to satisfy the customer, the 2^nd opposite party replaced the compressor and made it fit for a working condition within 2 days the complainant again came to the service center and made a complaint, saying that there is low cooling.  This opposite party sent the service provider to verify it.  On verification, it was found that there was low gas.  Since the gas does not cover under the warranty, this opposite party charged them Rs.2,000/-.  Infact the cash was received only after completion of work and after the refrigerator came to working condition and at the satisfaction of the customer.

12. After all the ratifications were done there was no further complaint at all.  To the shock and surprise of this party the complainant has chosen to file this complaint.   There is no deficiency of service on the part of the opposite party. Infact this opposite party had done more helps free of costs. If at all he wants replacement he has to seek the remedy from the manufacturer.

In any event, the claim against this opposite party is belated, barred by time and for want of jurisdiction and place of cause of action.  The complaint is liable to be dismissed.

13.  In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1to Ex.A7 were marked.  While so, on the side of the 2^nd opposite party, the proof affidavit is filed and Ex.B1 &ExB2 were marked on their side. The opposite party is remained Ex-parte.

14. At this juncture, the point for consideration before this Forum is:-

1.     Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2.     To what other reliefs, the complainant is entitled to?

15. Written arguments filed by the complainant and 2^nd opposite party and also oral arguments heard on both sides.

16.Point No.1:-

According to the averments of the complaint, the complainant has purchased the refrigerator from the 2^nd opposite party on 10.08.2013 and operation of the said product was in good condition for the two years from the date of purchase and thereafter on 07.07.2015 it was found that the refrigerator was not functioning and immediately the complainant approached the 2^nd opposite party informed regarding the repair but in respect of repair made by the opposite party, the problem could not be solved and further, though the  warranty period, the opposite party charged for the refrigerator repair and also for repair charges which clearly amounts for deficiency of service.  

17.On the other hand, it is vehemently contented by the opposite party2, that all false.  In fact the complainant demanded for a cheap and discounted refrigerator and thereby, he suggested that they have a showroom product refrigerator at the discounted price and in turn after knowing fully well that show room piece which was kept for a long time.  The complainant purchased the same for the discount price Rs.17,500/- and also for which, the refrigerator is in working condition for past two years and the warranty covered  one year for compressor and further the opposite party as admitted despite service person to the rectify the defects whenever complaint made by the complainant and repair work charged was only for filling of the gas which was not for the warranty  but not otherwise and  Hence no deficiency of service.

18. At the outset, the duty cast upon this Forum to consider whether the complainant has come forward to prove the case the averments of the complaint by means of acceptable and consistent evidence which is the foremost duty of the complainant.  First of all, on seeing the evidence of the complainant it is stated that the complainant purchased the refrigerator from the 2^nd opposite party’s retail shop for a sum of Rs.17,500/-on 10.08.2013 and also paid a sum of Rs.350/- for stand and receipt for the same is marked as Ex.A1 and the warranty card issued at the time which is marked as Ex.A2.  It is further stated that the refrigerator was working in good condition for past two years from the date of purchase and thereby on 07.07.2015 it is found that refrigerator was not functioning and immediately the complainant made a complaint to the 2^nd opposite party and in turn the 2^nd opposite party directed a service centre (Venus Refrigerator) and thereby the person who was assigned to provide service, who checked the refrigerator and made a statement that the refrigerator of the complainant is not a brand new one and it is an old stock and for which the complainant has paid a sum of Rs.350/-towards repair charges through Ex.A3. Again the complainant approached the 2^nd opposite party made a complaint that the compressor and motor of the refrigerator stopped working and a sum of Rs.6,000/- is required to repair the fridge.  It is further seen that one week later, on 17.07.2015 another two persons came down for repair and they informed that the gas has filled for the functioning of the refrigerator which cost of Rs.2,000/-and the same paid by the complainant and even then the refrigerator was not working which is marked as Ex.A4.  It is further stated that though the complainant made the several attempts for proper repair but all are ended the vain and therefore the complainant sent a legal notice Ex.A5 to the opposite parties and the same were received by the opposite parties  through Acknowledgement cards Ex.A6 and Ex.A7.

19. While being so, it is learnt from the evidence of the opposite party that the complainant had purchased the refrigerator through Ex.A1, but the same was purchased from the 2^nd opposite party for discounted price and further reported that the alleged refrigerator work in good condition for two years and However, satisfy the complainant the 2^nd opposite party despite service provider and rectify the defect free of cost and respect of filling of gas charged Rs.2,000/- which is not covered under the warranty and for other repairs with  free of cost which are marked as Ex.B1 and Ex.B2.  It is further stated that the 2^nd opposite party had replaced the compressor and made it for working condition to the satisfaction of the customer even though the warranty period is for only one year and therefore there is no deficiency of service on the part of the opposite parties.

20. At the outset, this Forum on careful perusal of the rival submissions it is crystal clear that there is no dispute regarding the purchase of the alleged refrigerator from the 2^nd opposite party through Ex.A1 and also it is an admitted facts that the refrigerator is working in good condition for past two years from the date of purchase.  After that, as per the complaint the alleged refrigerator was found that it is not functioning on 07.07.2015 and from the date made a complaint to the 2^nd opposite party thereafter, the retail shop directed the service centre (Venus Refrigerator) attend the complaint and charged Rs.350/- and therefore it is informed that the compressor and motor stopped working and a sum of Rs.6,000/- is required to repair and thereafter on 17.07.2015 another two person came down for repair.  They informed that the gas has to be filled for the function of the refrigerator which will cost of Rs.2,000/- and the same was paid by the complainant and even than the refrigerator was not working. 

21. At this point of time, it is stated that the complaint though the warranty period is 4 years as per the Ex.A2 and even than the opposite party charged a sum of Rs.2,350 by means of Ex.A3and Ex.A4.  While so, it is contented by the opposite party-2 that the warranty period was one year and the same was already lapsed.  In such circumstances it is clearly seen from the Ex.A2 the warranty period is 4 years and also crystal clear that within the warranty period the repayment of compressor or any repairs to be done worth free of cost.  At this instance the opposite party narrated that they have charged only for filling of gas not for compressor but it is clearly seen from Ex.A4 that it was charged including the compressor.  Similarly, it is seen from the Ex.A3 the (Venus Refrigerator) who was assigned to provide service by the opposite party had charged of Rs.350/- for repair which is against terms and condition of the Ex.A2.  Therefore, the plea taken by the opposite party that there is no deficiency of service on the part of the opposite party is devoid of merit. In respect of other pleas, it is liable to be rejected since there is no merit at all and the same have not been proved on the side of the opposite party.

22. From the foregoing among other facts and circumstances this Forum can easily conclude that there is a deficiency of service on the part of the opposite parties 1and 2 and the same has been proved by the complainant through consistent and reliable evidence.  Thus, point No.1 is answered accordingly.

Point No.2:-

23. Regarding this point, it is crystal clear that the opposite party 1and 2 have charged for the replacement of the compressor as well as repair for the same which is very well covered under warranty Ex.A2 which is very well leads to the deficiency of service on the part of the opposite parties and it is certainly caused mental agony and financial loss and the same has to be compensated by the opposite parties.  Hence, the complainant is entitled the refund of the repairing charges with reasonable compensation and with cost.  Thus, point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1to2 are jointly and severally liable  and  directed  to  pay  a sum of Rs.2,000/- (Two thousand only) towards cost of repair spent by the complainant along with interest at the rate of 9% per annum from the date of complaint i.e. (03.05.2016) till the date of this order (09.07.2018) and to pay a sum of Rs.5,000/-(Five Thousand only) towards compensation for causing mental agony, hardship, inconvenience and monetary loss due to the deficiency of service on the part of the opposite parties and cost of Rs.3,000/-(Three thousand only) towards litigation expenses.  Regarding other reliefs, this complaint is dismissed.   

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the Steno-Typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum of this 9^th  July 2018.

   -Sd-                                                                                 -Sd-

MEMBER                                                                     PRESIDENT

List of documents filed by the complainant:-

List of documents of the 2^nd opposite parties:-

  -Sd-                                                                                    -Sd-

MEMBER                                                                        PRESIDENT