O R D E R
(By Sri A. Radha Krishna, President on behalf of the Bench)
1 The complainant sought refund of Rs. 13,990/- being the price of Onida Washing Machine purchased by him from 1st opposite party manufactured by 2nd opposite party and the 3rd opposite party is being service center.
2. The allegations in the complaint in brief are that the complainant has member ship card of the 1st opposite party. He purchased washing machine “Splendor Ultra 65’ on 13.04.2013 from the opposite party for Rs. 13,990/-. At that time warranty card was also issued which is valid for 2 years. Since date of purchase he noticed there are defects in the washing machine and he brought the same to the notice of 1st opposite party. While he was using washing machine suddenly it stopped functioning from 18.10.2013. On the next day he complained the defect to the 1st opposite party on phone who promised to send the persons to attend for repairs but the opposite party did not send any persons. On 23.10.2013 he placed his complaint through online and the same was registered. Even for that there was no response. He also contacted the 3rd opposite party to know the result of his complaint who also did not respond.
3 It is also his grievance on several times he approached 1st opposite party for replacement of the machine but the same was not done. The 1st opposite party orally informed him the 2nd opposite party is competent person to replace the washing machine. The complainant also requested 1st opposite party to return the amount of Rs. 13,990/- but there was no response from 1st opposite party. According to him the defect in the washing machine is manufacturing defect and on 30.10.2013 he also issued notice to opposite parties 1 and 2. The same was received by them and the 2nd opposite party issued reply with false contentions. Thus he filed the present complaint for refund of the cost of washing machine and also Rs.50,000/- towards compensation for physical strain and mental agony against the 1st and 2nd opposite party.
4 Resisting the claim of the complainant the 1st opposite party filed its written version denying the material allegations in the complaint and further according to them the washing machine was purchased by complainant for commercial purpose for his shop/business Reddi Rama Krishna and Others and not for his personal use. Further according to they are in whole sale trade who deals with customers who purchase goods exclusively for commercial purposes. Hence complainant is not a consumer within the meaning of C.P. Act. It is also their case the complainant obtained membership only for commercial purpose for his business. It is also their plea that no person unless and until he is on behalf of a commercial shop or institution and purchasing goods for use of by business / resale is allowed to become member of the 1st opposite party. Further according to clause No.1 of the terms and conditions they sell goods to its business members only on the condition that the said goods are not use purchased for personal consumption and further such purchases is for resale, commercial, business, institutional and / or industrial use only. After considerable lapse of 8 months the complainant filed this present complaint and further the warranty given by 2nd opposite party relating to product provides for certain contingencies only. It is also their case even if there is any defect as the complainant purchased washing machine of the 2nd opposite party they are responsible for warranty or guaranty of their product. Thus according to them the complainant complaint is not maintainable.
5 The 2nd opposite party also filed written version disputing the claim of the complainant and according to them on receiving online communication they communicated the same to the 3rd opposite party to rectify the defect as it is a service point. Immediately 3rd opposite party contacted the complainant on 24.10.2013 and after knowing the complaint put an order for defective part to 2nd opposite party Authorized Service Center at Vijayawada. They sent the said part on 28.10.2013 to the 3rd opposite party as the said part was not readily available. The men of the 3rd opposite party approached the complainant to rectify the defect but he refused for the change and did not permit to rectify the problem. It is also their case under the warranty period only repair or replacement of certain defective parts will be considered and under any circumstances replacement is not warranted. Thus they sought dismissal of the complaint.
6 The 3rd opposite party also filed the counter affidavit interalia contending that they procured part on 28.10.2013 and visited the place of complainant but he refused to allow them to repair product and he also refused to sign on job sheet. Thus they sought dismissal of the complaitn.
7 Now the points for determination are:
1. Whether the complainant is a consumer as defined under C.P. Act?
2. If so, whether there is any deficiency of service on the part of opposite parties 1 and 2?
3. Whether the complainant is entitled for refund of the cost of washing machine and also compensation for mental agony?
4. To what relief?
8 Point No.1: It is not in dispute the complainant purchased washing machine from the 1st opposite party manufactured by 2nd opposite party and he was also given warranty card which is valid for 2 years.
9 The whole dispute revolves around the contention of 1st and 2nd opposite parties who challenged the status of the complainant as a consumer. Thus in these circumstances it is to be seen whether the complainant is a consumer as defined under C.P. Act.
10 Sec. 2[d] of the Consumer Protection Act defines a consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose etc.
11 Thus as seen from the definition clause it is clear that a person who buys any goods for consideration for resale or for any commercial purpose doesn’t come within the purview of consumer.
12 In this case the complainant furnished his proof affidavit in support of his claim and exhibited 8 documents. Ex.A1 is copy cash bill showing the purchase of washing machine, Ex.A2 is users manual cum warranty card, Ex.A3 is office copy lawyer’s notice issued to opposite parties 1 and 2, Ex.A4 and A5 are acknowledgments of 1st and 2nd opposite party, Ex.A6 is reply notice issued by the 2nd opposite party, Ex.A7 is Xerox copy of member ship card of the complainant and Ex.A8 is the slip issued by the 3rd opposite party.
13 As against this evidence 1st and 3rd opposite parties furnished proof affidavits and they exhibited as many as 6 documents. Ex.B1 is certificate of incorporation showing change of name of the opposite party, Ex.B2 is membership application form submitted by complainant and terms and conditions attached to it, Ex.B3 and Ex.B4 are delivery challans and Ex.A5 is communication send showing non availabily of the part and Ex.B6 is the email send to the service co-ordinator of the Adonis Electronics Pvt. Ltd.
14 As it is the contention of opposite parties that the complainant is not a consumer and he purchased the washing machine for further sale or business sale only they mainly relied on the membership application form submitted by the complainant at the time of his becoming member of 1st opposite party. The application would indicate that the complainant described his name of the company as Reddy Ramakrishna and others and the membership type is shown as business service. Condition No.1 of terms and conditions clearly shows the opposite party sells goods to its business members only on the condition that the said goods are not purchased for personal consumption and further such purchase is for resale, commercial, business purpose only. The complainant has not disputed Ex.B2. Thus Ex.B2 would indicate application submitted by the complainant is very clear and the washing machine was purchased for business purpose only and as such as per Section [2][d] of C.P. Act the complainant doesn’t fall under definition of Consumer. Thus this point is answered against the complainant.
15 Point No.2 & 3: In view of the finding rendered under point No.1 there is no deficiency of service on the part of 1st and 2nd opposite party and the complainant is not entitled for any amount. Hence these points are also answered against the complainant.
16 In the result, the complaint is dismissed in the circumstances without costs.
Dictation taken by the steno, corrected and pronounced by us, in open Forum, this the 10th day of March, 2015.
Sd/- xxxx Sd/- xxxxxxx
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant :
Sri Kotha Jagadeesh [Complainant ]
For opposite parties :
Ms. Rima Bhardwaj, Walmart of India Pvt. Ltd.
Thota Raghavakumar, Service Provider, Onida Service Center, Kakinada
DOCUMENTS MARKED
For complainant:-
Ex.A1 Copy cash bill showing the purchase of washing machine
Ex.A2 Users manual cum warranty card
Ex.A3 Office copy lawyer’s notice issued to opposite parties 1 and 2
Ex.A4 Acknowledgment of 1st opposite party
Ex.A5 Acknowledgment of 2nd opposite party
Ex.A6 Reply notice issued by the 2nd opposite party
Ex.A7 Xerox copy of member ship card of the complainant
Ex.A8 Slip issued by the 3rd opposite party.
For opposite parties:-
Ex.B1 Certificate of incorporation showing change of name of the opposite party
Ex.B2 Membership application form submitted by complainant and terms and conditions
Ex.B3 Delivery challan
Ex.B4 Delivery challan
Ex.A5 Communication send showing non availabily of the part
Ex.B6 email send to the service co-ordinator of the Adonis Electronics Pvt. Ltd.
Sd/- xxxx Sd/- xxxxxxx
MEMBER PRESIDENT.
