IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 67/S/2016. DATE OF FILING : 22.06.2016.
BEFORE PRESIDENT : SRI SUBHABRATA CHAUDHURI,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANT : SRI OM PRAKASH KHAITAN,
R/O. Ward No.25, Maa Narayani Bhawan,
Ground Floor, Beside Siliguri Public School,
Millan Pally, Sukant Sarani, Siliguri-734 001,
West Bengal.
Phone No. – 98320 30817.
O.Ps. 1. : WHIRLPOOL OF INDIA LIMITED,
Plot No. A-4, MIDC, Ranjangaon, Taluka Shirur, Dist.- Pune, Maharashtra, PIN-412 220.
2. : HOMESHOP 18,
7th Floor, FC-24,,
Sector-16A, Filmcity,
Noida, Uttar Pradesh, PIN- 201 301.
3. : SPECTACULAR MEDIA MARKETING PVT. LTD.,
C/o Apollo Fiege Integrated Logistics Pvt. Ltd.,
Khasra No.1080, Sadique Nagar,
Opposite Uttam Toyota Vikas Nagar,
Ghaziabad, Uttar Pradesh, PIN – 201 010.
4. : MOON REFRIGERATION,
M. N. Sarkar Road, Siliguri Junction,
Near Mahanandapara, Siliguri, PIN - 734 001.
FOR THE COMPLAINANT : Puja Bhupal, Advocate.
FOR THE OP No.1 : Sri Janmejay Ganguly, Advocate.
FOR THE OP Nos.2 & 3 : Sri Biswajit Sharma, Advocate.
FOR THE OP No.4 : None.
F I N A L O R D E R/J U D G E M E N T
DATE : 06.08.2018.
The complainant’s case, in a nutshell, is that one, Om Prakash Khaitan intended to buy a 20L Microwave Oven- bearing Model No.: Magi-Cook 20 DW, having product Code : 33307827 manufactured by OP No.1-company and thus purchased the same through OP No.2 (on-air television shopping channel) which
Contd…….P/2
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was sold by OP No.3, on 16th January, 2016 y virtue of order no.985150677 for a sum of Rs.6,998/- including shipping charges of Rs.199/- having invoice no.GZS/012016/10919 dated 18.01.2016 and the mode of such payment was cash on delivery and the said goods was dispatched through Gati Surface Couriers which was delivered on 26.01.2016 to the complainant on payment of such money in cash amounting Rs.6,998/- by the complainant and the said microwave-oven (hereinafter be called as machine/goods) was installed on 28.01.2016 by service Engineer of OP No.4 in consequence of complainant’s call through Customer Care center of OP No.1. It is further contended in the petition of complaint that Service Engineer installed and explained the process as regards operation and functioning of the said machine while lights were on but when complainant tried to use the said machine he found the said machine was not functioning, even it was not taking the heat and thus was of no use. On 07.03.2016 complainant again called customer care center of OP No.1 and the Service Engineer of OP No.4 came and repaired the said machine and instead of testing just switched it on and again while lights on, explained the functioning of the machine orally and when in this second occasion the Service Engineer left the place complainant tried to use the said machine but surprisingly again the said machine was not functioning only lights were turned on.
The complainant again on 25.03.2016 and on 29.03.2016 and on 13.04.2016 lodged complaints with the Customer Care Center and it is stated in this petition of complaint that on each & every call, the Service Engineer of the OP No.4 used to come & attended repairs of the said machine but the machine never functioned normally and thereafter the complainant finding no other alternative issued legal notice upon OP Nos. 1 to 3 through his ld advocate on record as the OPs were shrugging their shoulders to run away from their responsibilities but OPs also did not reply to that advocate’s letter as was sent to them. The said machine was within warranty period which extended up to one (1) year, hence this case with a prayer for direction upon the OP Nos.1 to 3 to take back the said machine and for refund the complainant the purchase price thereof and secondly direction upon the three OPs (1 to 3) to pay Rs.2,00,000/- two lakhs each i.e., Rs.6,00,000/- (Six lakhs) along with interest calculated @ 18 % per annum on the said purchase price from the date of notice till actual realization to the complainant and further litigation cost of Rs.12,000/- claimed jointly from these OP Nos. 1 to 3 in favour of the complainant.
OP No.1 has been contesting this case right from appearance till now and
Contd…….P/3
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filed written version. In the written version it is stated that Service Engineer visited many times as mentioned in the complaint. On 29.03.2016 replaced on checking a spare part namely “Magnetron” and made the running & functioning of the machine properly. Thereafter, on 13.04.2016 the complainant while made a service request on visit Service Engineer was not allowed to take inspection of the said machine. The complainant claimed for total replacement of the said machine. The Service Engineer informed complainant that a request through mail is required to place before OP No.1 and that mail was sent, request was accepted and a new machine of same specification was sent to the complainant on 23.07.2016 but complainant deliberately refused to take delivery of said new machine and ultimately OP No.1 has sought for dismissal of this case.
OP No.2, submitted written version and stated that this OP’s role is only to book the order and M/S Home Shop 18 is an electronic intermediary/e commerce market place and provided - an online shopping platform /venue. OP No.1 is manufacturing unit and OP No.3 Spectacular Media Marketing Pvt. Ltd. is the vendor/seller of the product in question and OP No.2 is none.
OP No.3, filed written version and submitted written version and stated categorically therein that as per booked order the complainant received the product on 27.01.2016 sent by this OP vendor Spectacular Media Marketing Pvt. Ltd. i.e., OP No.3 and this OP No.3 should not have made a party by the complainant as OP No.3 is not liable in any way for this case.
Evidence & documents as adduced & produced by the parties.
Complainant has filed his evidence as PW1 along with affidavit in writing and some documents which included lawyers letter dated 17.05.2016 along with postal receipts’ which are three (3) in numbers showing this letter were issued each to OP Nos.1 to 3 at their cause title mentioned addresses.
OP Nos.1 & 3 separately filed their respective affidavit in chiefs – while OP No.1 by filing a petition before this Forum on 24.07.2017 has prayed for treating written version as evidence from OP No.1 and that has been allowed by this Forum. Ultimately, on the date of arguments ld advocate remained present from the side of OP Nos.2 & 3 but ld advocate of OP No.1 also remained present and after filing written notes on argument, argument started and completed from OP side while before that by filing written notes on argument complainant’s ld advocate completed his argument in this case.
Case law has been filed by the side of OP No.1 which are mainly on
Contd…….P/4
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assessment of compensation on the points of mental agony, harassment in favour of the complainant against the OPs which has been referred and reported in (1997) 6 Supreme Court cases 487 as passed by Hon’ble Division Bench of Hon’ble Supreme Court of India is very much applicable to this case as regards principles to be followed as enshrined therein. It is observed by our Hon’ble Apex Court of India that “where damages are awarded there must be an assessment thereof and order awarding damages must contain an indication of the basis upon which the amount awarded is arrived at”.
Under the facts and circumstances of the case the following issues are framed.
1) Is the case maintainable in its present form?
2) Whether the complainant has any cause of action to institute this case?
3) Whether there was any deficiency in service on the part of the OPs?
5) Whether the complainant is entitled to get any relief/reliefs as prayed for?
Decision with reasons
Issue Nos.1 & 2.
These two issues are taken up together for consideration. From the facts and circumstances of the case itself, it is evident that complainant is a person who comes under the category of a complete consumer as per definition as enumerated in Section 2(1)(d) of the Consumer Protection Act, 1986.
The goods in question was purchased by the complainant on 26.01.2016 and the case has been filed before this District Forum on 22.06.2016 which is well within the period of limitation expires as per Section 24 A of the Act, 1986.
The case has the right territorial & pecuniary jurisdiction as well as cause of action as per Section 11 of the Act. So, after careful scrutiny of the relevant materials on case record we are of the considered view that there remains no hesitation to hold that this instant case is a case which is maintainable in its present form & nature having proper right cause of action too.
These two (2) issues are thus disposed of in favour of the complainant.
Issue Nos.3 & 4.
These two issues are also vital & important as because complainant is to establish as to whether deficiency in service has been done upon him or not by the OPs as alleged and if it is answered in affirmative that so has been committed upon him then he is entitled to get relief as per provision of C.P. Act otherwise not.
Contd…….P/5
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From perusal of the invoice dated 18.01.2016 it appears that 20L Micro wave oven-Magicook 20 DW manufactured by Whirlpool was purchased by the complainant by paying a total price of Rs.6,998/- from OP No.3, seller.
From the written version which is evidence also of OP No.1 the contention of complaint in that respect that many times just immediately after purchase of machine the Service Engineer had to visit to complainant’s place for repair of the machine on different times booking of calls by complainant through company’s customer care center orienting that machine for i.e.’-s non functioning has been admittedly established.
Seen the papers submitted by the complainant including his ld advocate’s letter sent to OP Nos.1 to 3 stating in details mainly therein the sufferings of complainant caused due to disturbance of the machine as it was not functioning properly.
It is the admitted position that company’s service Engineer visited the complainant for repair of machine repeatedly within three month’s of its delivery from OP No.3 to complainant. It is also admitted & supported by paper & document to that effect by OP No.1 that Whirlpool of India Ltd. as per request sent through mail by complainant on 23.07.2016 offered one new machine with same specification to the complainant but complainant refused to accept.
On due consideration of all the documents including written version, evidence of the OP Nos.1 to 3 and that of evidence of complainant, we are of the view that in this case over the issue of purchase of microwave oven (machine) all the OP Nos.1 to 3 each is a member of one team having separate role played from the very beginning upto the delivery of said machine to the house of the complainant, so none can evade individual responsibility & liability as regards defect in the goods (machine) purchased by complainant. There is no doubt deficiency in service has been occurred here as regards non-functioning of the purchased goods of complainant and the complainant is a purchaser/consumer of good, on good and honest faith to the branded company (OP No.1) product.
So, both these issues are disposed of in favour of complainant and the complainant is entitled to get the relief but not as per complaint’s prayer paragraph 26 (d) of the complainant and in this context we have earlier in this order mentioned the judgement of Hon’ble Supreme Court of India which has been reported in (1997) 6 Supreme Court cases 487, and in view of the same it is considered by us that amount of compensation claimed by the complainant has gone beyond all reasonable reach as because the price paid for purchase of defective machine was Rs.6,998/- in total though question of mental agony, harassment of the complainant has been considered by us.
Contd…….P/6
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As a result the complainant’s case succeeds.
Proper fees paid.
Hence, it is,
O R D E R E D
that the instant Consumer Case No.67/S/2016 be and the same is allowed on contest in part against OP Nos.1 to 3 and exparte against OP No.4 with costs.
The OP Nos.1 to 3 are hereby directed to refund jointly and severally a sum of Rs.6,998/- (Six Thousand Nine Hundred Ninety Eight) to the complainant as against the price of the said micro wave oven which was paid by the complainant while complainant shall refund the defective and old micro wave oven to them. These three (3) OPs are at the same time directed again another sum of Rs.10,000/- (Ten Thousand) as compensation for mental agony, suffering and harassment of the complainant as well as another sum of Rs.10,000/- (Ten Thousand) is awarded as against litigation cost totalling the sum as Rs.26,998/- (Twenty Six Thousand Nine Hundred Ninety Eight) to the complainant. This amount of Rs.26,998/- shall be paid severally and jointly by OP Nos.1 to 3 of this case to the complainant within 45 days from the date of this order, failing which they (OP Nos. 1 to 3) shall be liable to pay interest @ 9% per annum from this date until full realization of the awarded amount and the complainant to that effect shall be at liberty to put this order/award in execution.
Let a copy of this order be handed over to each of the parties free of cost at once.
-Member- -President-
