Andhra Pradesh

Nellore

CC/86/2013

Gundala Muni Reddy - Complainant(s)

Versus

1. The Proprietor, Nirmala Agencies - Opp.Party(s)

Md.Rahimkhan

31 Aug 2015

ORDER

                                                             Date of filing     :  24-04-2013

                                                            Date of disposal  :  31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the 31st day of AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.86/2013

 

Gundala Muni Reddy,

S/o.Penchala Reddy,

Hindu, aged about           years,

Presently residing at Gundalavari Street,

Atmakur post and Mandal,

SPSR Nellore District.                                            …         Complainant

 

                      Vs.

                                                                            

                                                                              

1. The Proprietor,

Nirmala Agencies,

Nirmala Buildings,

Trunk Road, Nellore.

 

2. Godrej & Boyce Mfg.Co.Ltd.,

         Rep. by its Managing Director,

         Godrej Bhawan,

         Sher Shan Suri Marg, Okula,

         New Delhi -110020.

 

         (added as a party in I.A.No.92/2014)             …    Opposite parties

           Orders of the Hon’ble Court on 17-10-2014

 

  This matter coming on  27-08-2015  before us for final hearing in the presence of Sri Md.Rahimkhan, Advocate for the complainant and  Sri Sk.Mahaboob Basha,                                       

Advocate for the  opposite parties and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

This consumer case is filed by the complainant against the opposite parties 1 and 2 to direct them to pay an amount of Rs.15,750/- (Rs.11,500/- +Rs.4,250/-) after receiving the defective Godrej refrigerator with interest at 24% from the date of purchase i.e., 26-05-2010; to pay Rs.20,000/- towards damages and mental agony to the complainant and to grant costs of Rs.2,000/- to him and grant such other relief or reliefs as the Hon’ble Forum may please to deemed it fit under the circumstances of the case.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:-

 

I (a)  It is the case of the complainant that on 26-05-2010 he purchased  Godrej refrigerator for value of Rs.11,500/- from the 1^st opposite party’s shop but which was not functioned well from the date of its purchase.  The complainant had informed to the opposite party about non-functioning of refrigerator in number of times but the 1^st opposite party was not              co-operated for repairing the said refrigerator.  He has also further submitted that after his long deliberations, on 20-08-2011 the first opposite party sent mechanic to his house and found the trouble in compressor and partially rectified the defects in it and collected charges for a sum of Rs.750/- from him.  He has also submitted that the above said refrigerator was not at all functioning properly even after rectifying the defects in the compressor by the mechanic of the first opposite party and again he had immediately given information to the 1^st opposite party with regard to the defect in the compressor and it was not cooling the items kept in the refrigerator. 

 

(b)    It is also submitted by the complainant in para- 3 of his complaint that

the 1^st opposite party sent another mechanic on 17-12-2011 to his house and partially rectified the defects in the refrigerator and also charged a sum of Rs.2,500/-. Even then, the trouble in the refrigerator was persisting and the complainant had informed to the 1^st opposite party about the said defect

and thereby the 1^st opposite party sent another mechanic on 27-1-2012 and he did not rectified the defects in the refrigerator and demanded another sum of Rs.750/- for repairs but the complainant had refused to pay said amount.  The complainant has so far spent Rs.4,250/- within a period of 1 and ½ year but the said refrigerator brought warrant a period of 5 years.  He has further submitted that till today said refrigerator is not functioning properly and he gave already number of complaints to the opposite party.  But the opposite party had not responded till today.  The above said refrigerator had become unused.  As per the terms and conditions of the warranty of the refrigerator, the opposite party took back the said refrigerator and to replace the another refrigerator to the complainant.

 

( c )   It is also further submitted  by the complainant that he had approached the  1^st opposite party, he gave evasive reply to him.  He was victimized by the attitude of the 1^st opposite party for not rectify the defects in the refrigerator.  He had suffered mental agony distress because of the attitude of the 1^st opposite party.  There is a deficiency in service on the part of the 1^st opposite party and the 1^st opposite party had supplied refrigerator with defects thereby he suffered loss of Rs.4,250/-  in addition to the cost of the refrigerator for Rs.11,500/- apart from his mental agony, sufferings and deficiency in service for a sum of Rs.20,000/-.  He had also submitted that he had sent the legal notice through his advocate to the opposite party on   1-3-2012, but the 1^st opposite party had not given either reply or rectified the defects of the refrigerator. 

 

(d)   There are causes of action to file the complaint against the opposite parties, which are narrated in para – 5 of the complaint of the complainant.  It is therefore, prayed that the Hon’ble Consumer Forum may be pleased to allow the complaint, as prayed for.

 

DEFENCE:

 

The contents of written version on behalf of the 1^st opposite party

 

    The complaint was resisted by the 1^st opposite party by filing written version/counter on 04-02-2014 and denied the allegations of the complainant in the complaint, are narrated by him.  The complaint is neither maintainable in law nor on facts and it is liable to be dismissed.

 

1.It is submitted by the 1^st opposite party that in para – 3 of his written version/counter that it is true that on 25-06-2010 complainant had purchased Godrej Refrigerator for Rs.11,500/-.

 

         It is also submitted by the 1^st opposite party that as per the Godrej warranty, the duty of the dealer (1^st opposite party) is that after selling the refrigerator, he has to fill the warranty card correctly and completely.  In the event of a defect developing in the product, the purchaser i.e., the complainant has to contact the nearest authorized service centre for obtaining service warranty.  Therefore, the 1^st opposite party has nothing to do with regard to the defects in the refrigerator.  Further, it is clearly mentioned in the warranty refrigerators under the head instructions for the customer” and the receipt for Rs.1750/- also clearly shows that the authorized service centre i.e., M/s.S.M. Appliances, Nellore issued the said receipt after repairs are completed.

 

   In fact, the authorized service centre i.e., M/s.S.M.Appliances, Venkataramapuram, Nellore had rectified the defects in the said refrigerator and collected the necessary charges as per the Godrej company rules.  The 1^st opposite party did not send any mechanic to the house of the complainant.  It is further submitted that it is for the said authorized service franchise of Godrej company i.e., S.M. Appliances, who will attend to the service and repairs of the refrigerator to recommend for replacement in case the defects are not rectified, to the manufacturer i.e., Godrej company.  The 1^st opposite party is a dealer and he has nothing to do with regard to the repairs and for any replacement of the refrigerator of the complainant.

 

  It is submitted by the 1^st opposite party that paras 7 to 10 of the written version/counter that it is false to state that complainant had sent legal notice to the 1^st opposite party and he did not receive the same and therefore he had no knowledge of the same.  The 1^st opposite party is a dealer who is selling Godrej Company Products along with other companies’ products.  As per the instructions of the Godrej Company, the dealer has to sell their product and fill-up the warranty with correct address.  According to the instructions of the Godrej Company in the warranty, the customer has to contact the authorized service franchisee M/s.S.M. Appliances; Nellore, is the authorized service centre.  The mechanics from the said authorized service centre, Nellore were also attended to the repairs of the refrigerator of the complainant.  So, according to the terms of warranty, the 1^st opposite party is not liable to the complainant. So, according to the terms of warranty, the 1^st opposite party is not liable to the complainant.  He is neither necessary nor proper party to this complaint.  There was no deficiency in service of the 1^st opposite party to the complainant. There are no grounds to allow the complaint.  This complaint is filed only to harass the 1^st opposite party.  So, the 1^st opposite party had prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint against the 1^st opposite party with costs.

As per the contents of written version of 2^nd opposite party, the following allegations are against the complainant:-

 

   The complaint is not just and maintainable at law. 

 

  It is true that the complainant had purchased refrigerator from 1^st opposite party on 26-05-2010.  The first complaint was received from the complainant on 20-08-2011, i.e., after a period of nearly 14 months i.e., after the warranty period of one year for refrigerator was over.  So, there was no defect nor faulty workmanship found in the said refrigerator.  The balance period of 4 years warranty is only compressor.  The terms and conditions of warranty for Godrej refrigerator are produced as mentioned below, it is as follows as:-

   “Godrej refrigerator comes with a five year warranty on COMPRESSOR and a one year warranty on all other parts, except bulb, glass and add on plastic parts against defective material or workmanship.  In case of any such defect found during the first year from the date of purchase, Company will undertake repairs to the warranted part free of charge subject to terms and conditions specified in the warranty card handed over to the purchaser, In the warranty period beyond the first year from the date of purchase, only the component (the compressor) will be provided free of cost.  However the appliance will be repaired on payment of necessary charge.

 

  It is also further submitted by 2^nd opposite party that in paras 6 and 7 of its written version that the amount which the complainant had paid on two occasions was for carrying out the repairs to the component – i.e., the Compressor as per terms and conditions of the warranty and there has been no deficiency of service at all.  Leakage of gas from the compressor is not due to defective part nor faulty workman ship.  The reasons for leakage of gas from the Compressor of the Refrigerator, which is the backbone for effective cooling, are varied and it may be even due to poor and erratic power supply.  The authorized service provider of Godrej & Boyce Mfg. Co.Ltd., (the second respondent) is M/s.S.M.Appliances, 15/968, Venkatarama Puram, Opp.Vijaya Sai Apartments, Nellore-2 and whenever he was approached by the complainant, the service provider was  readily available at the service of the complainant and never evaded him, nor given evasive replies.  The M/s.S.M.Appliances, being the authorized service provider, informed the complainant that depending on the requirement of the service, charges would be levied for which the complainant was furious and started threatening the Service Provider of this respondent that he would approach the District Consumer Forum.

 

  The 2^nd opposite party in its paras 8 and 9 of written version that even now 2^nd respondent/opposite party is ready to address the grievance of the complainant i.e., attending to the Refrigerator of the complainant as per the terms and conditions of the warranty for keeping his refrigerator in good working condition with a reasonable charges for filing the gas and transportation charges.  Finally, the 2^nd opposite party had prayed that the Hon’ble Forum may be pleased to direct the complainant to allow the Service Provider of this opposite party i.e., M/s.S.M. Appliances, to attend the refrigerator of the complainant to ensure that the same may be kept in satisfactory working condition with reasonable charges as per the terms and conditions of the 5 year warranty period.  This opposite party further prays the District Consumer Disputes Redressal Forum, to dismiss the petition against the 2^nd opposite party with costs.

 

III.  (i) The complainant had filed his affidavit on 27-07-2015 and the documents marked on his behalf also as Exs.A1 to A5 whereas the opposite parties 1 and 2 had filed separate affidavits on 30-06-2015 and there were no documents marked on their behalf and the complainant had also filed his written arguments in support of the case.  There were no written arguments on behalf of the opposite parties 1 and 2 before the Forum.

 

IV. Basing on the material available on the record such as complaint, affidavit and also written arguments of complainant, the points that for consideration and determination of them are namely:-

 

(a) Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V. POINTS 1 AND 2: I In view of these two points are inter-related with each other, we have taken up them together for discussion and determination of the case. 

      

   Sri Md.Rahimkhan, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments are submitted on behalf of the complainant may be read as part and parcel of his oral arguments.  He has further argued that by reiterating the facts of the case once again and stressed much about the defects occurred in the refrigerator and repaired subsequently not to the satisfaction of the complainant and the same defects are not rectified and they are recurring once again.  His main contention is that inspite of spending additional expenditure on the refrigerator by the complainant towards service charges, does not yield good result and there is a deficiency in service and negligence of opposite parties.  The said learned counsel for the complainant has further urged that the complainant has faith while purchasing the refrigerator by brand name with a fond hope that it (refrigerator) will give service to his best satisfaction and without defects during the warranty period and frequent repairs to the said refrigerator, caused much inconvenience and mental worry to him.  In the said circumstances and facts of the case, the complainant has prayed that the Hon’ble Forum may be pleased to allow the consumer case as prayed for.

 

   On the other hand, the learned counsel for the opposite parties has also vehemently argued that the written versions of the opposite parties 1 and 2 and their affidavit evidence may be read as part and parcel of his oral arguments. He has also further argued that by reiterating their defence once again and urged that the customer has to contact the authorized service centre and defects arose in the said product of refrigerator due to several reasons such as poor, erratic power supply and mis-handling of refrigerator by unknown persons in the house as the case may be.  The said learned counsel for the opposite parties has contended further that the opposite parties have never received any legal notice from the complainant (Exs.A5).  Finally, he has prayed that the Hon’ble Forum may be pleased to dismiss the complaint with costs.

 

Forum’s Findings and observations

       Heard, the said learned counsel for the parties and perused the record very carefully.  Parties led their evidence by way of affidavits. We have considered the oral submissions of the parties. Complaint against deficiency in service is one of the crucial aspects of Consumer Protection Act of 1986.  The complaint is based on deficiency in service must establish the same by leading cogent evidence – 2011(2) CPR 68(NC).

 

   To appreciate the controversy in the Consumer Disputes between the parties, it would be appropriate if we narrate all the circumstances of the case both on question of fact as well as question of law in detail.  It is the cardinal principle of law that one who makes an allegation is required to prove it beyond any doubt – 2011 CTJ (NC) 627.   One who seeks equity from Forum/court, must come with clean hands.  In the instant case, the complainant has purchased the goods i.e., refrigerator from the dealer/1^st opposite party is proved by Exs.A1 document on 26-05-2010 for Rs.11,500/- and also repairs took place to the refrigerator is evidenced by Exs.A3 and A4 i.e., and it is true that Exs.A5 is the legal notice dt.02-03-2012 issued to the 1^st opposite party for taking necessary action.  The complainant has alleged the facts and that are proved by documentary evidence against the opposite parties.  It is crystal clear that the defects arose in the said refrigerator and repair done to that and charges levied by the opposite parties, are clearly apparent on the face of the record.

 

Duty of the Seller:  What is the duty of the seller, he must be careful while selling it, that’s why the concept of caveat venditor has come in the place of caveat emptor in the modern society.  The product must be free from defects as the case may be.  The seller/dealer is not supposed to play foul play in order to defeat and delay the interests of consumer, to get wrongful gain.  It is totally unjustified.  This case is demonstrating the highly unethical and unscrupulous conduct of the opposite parties.  The opposite parties had adopted so far a dogmatic, diffident and unhelpful approach in denying the rightful demands of the complainant.

 

  In this modern era, in every walk of life all the human beings are dependent on various services.  The qualitative services are becoming crucial not only from the point of view consumer but for the countries development.   The commercial minded service provider always tries to see the opportunity to exploit the innocent consumer by providing services.  However, C.P.Act, 1986 is considered an  area of law that regulates the relationship between the individual consumers and service providers.

The concept of defect:

The definition is very wide.  Where the law prescribes standard for quality, potency or purity for any product, not conforming to such standard is a “defect” in goods within the meaning of the Act of 1986.

Defect during warrant period:-  If defects in the goods are noticed during warranty period and they are not rectified  it amounts to deficiency in service.  Case :  Repeated deficiency in service of the service provider amounts to gross deficiency, in its service for which the consumer has to be adequately compensated by it 2010 CTJ (NC)1159.  In view of the facts and circumstances of the case on hand and with regard to points of fact and law, we are of the opinion that the said learned counsel for the complainant has convinced us with his oral arguments of the case.  We have considered the rival submission of the said learned counsel for the parties. There is a lot of deficiency in service on the part of the opposite parties towards complainant.  These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT No.3:  In the result, the complaint is allowed in part, ordering the opposite parties 1 and 2 are jointly and severally liable to pay Rs.15,750/- (Rupees fifteen thousand seven hundred and fifty only) to the complainant; to pay Rs.5,000/- (Rupees five thousand only) towards damages and mental agony and also payable of costs of the complaint of Rs.1,000/- (Rupees one thousand only) to the complainant within one month from the date of receipt of the order.  The first opposite party is entitled to receive the defective Godrej Refrigerator from the complainant.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of August,              2015.    

 

 

               Sd/-                                                                         Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

 

 

  APPENDIX OF EVIDENCE

 

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

27-07-2015

:

Gundala Muni Reddy, S/o.Penchala Reddy, Hindu, aged about                  years, residing at Gundalavari street, Atmakur post and mandal, SPSR Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1         RW2

30-06-2015         30-06-2015

:         :

S.Narasimha Reddy, S/o.Balakonda Reddy, Hindu, aged 60 years, Proprietor of Nirmala Agencies, having his business at Nirmala Building Trunk Road, Nellore – 524 001.   N.Badhari Nadhu, S/o.N.Ch.Suryanarayana, aged about 47 years, Occ: Branch Commercial Manager, Godrej & Boyce Mfg Co.LTd., M.G.Road, Secunderabad.

       

 

 

                                                                      

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	26-05-2010	:	Cash bill No.62 issued by the Nirmala Agencies, Trunk Road, Nellore, in favour of the complainant.
Ex.A2	26-05-2010	:	Original warrant card.
Ex.A3	17-12-2011	:	Service bill No.204 issued by the S.M. Appliances, Nellore  to the complainant.
Ex.A4	20-08-2011	:	Receipt for Rs.1750/- issued by the S.M. Appliances, Nellore to the complainant.
Ex.A5	02-03-2012	:	Legal notice issued by the complainant to the opposite party along with regd. postal receipt.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

 

• N I L -

       Id/-

PRESIDENT(FAC)

 

 

Copies to:

 

 

1. Sri Md.Rahimkhan, Advocate, Nellore.

 

2. Sk.Mahaboob Basha, Advocate, Nellore.

 

Date when order copies are issued: