ORDER                         Date: 10.03.2017

ManjuBala Sharma, Member

Brief facts relevant for the disposal of this complaint are that the complainant has purchased a deep freezer on 11/03/2014 from OP 1 (Authorized dealer of OP 2)  for a consideration of Rs. 16200/- vide invoice no. 1552.   After purchase of the said product the complaint found problem in cooling system and he made a complaint vide ticket no. B-140611078 regarding the defect on 30.04.2014 to customer care of  OP 1.   After making a number of complaints about faulty freezer the concerned person of OP assured the complainant to change the same but never turned up for replacing the faulty freezer.  After several requests the technical staff of OP 1 came and filled the gas in compressor and told that deep freezer would work properly but after some days the complainant again faced the same problem and again made a complaint on 31.05.2014.    Again technical staff of OP came to shop and did the same thing but after some days the deep freezer stopped to cool and freeze everything and completely went off.  Despite various complaints dated 10/06/2014, 11/06/2014, 23/06/2014, 10/07/2014 and 31/07/2014 the OPs failed to rectify the fault in deep freezer.  Aggrieved from the acts of OPs complainant sent a legal notice to them on 12/08/2014 but to no effect.  Hence complainant suffer financial lost/physical discomfort and mental injury and pleaded deficiency in service on the part of OPs and prayed to direct OPs to replace the deep freezer with a brand new or to refund the amount of the deep freezer to the complainant with interest.   Complainant further prayed to direct OPs to pay a sum of Rs. 1,58,100/- as compensation due to harassment and deficient service provided to him along with cost of  litigation.          

Notice was sent to both the OPs but nobody entered appearance on behalf of OP 2, hence proceeded ex-parte.   OP 1 entered appearance and filed its reply. OP 1 took preliminary objection that as complainant has bought deep freezer for commercial purpose the complainant is not a consumer as per the provisions of Consumer Protection Act.   OP 1 while admitting the purchase of the deep freezer also admitted the receipt of the various complaints regarding the deep freezer in question  but stated  that prompt action was taken upon receiving complaints from the complainant.  OP further stated that the deep freezer was sold in perfect good condition but with extensive use of the same by the complainant the level of the gas in the deep freezer was decreased because of which the complainant faced the  problem and the same was promptly responded by the OP 1 by sending a service team to the complainant for rectification of the same. 

Complainant filed its replication denying the allegations contained in the reply and reiterating the facts stated in the complaint.  Affidavit of evidence has been filed by both the parties in support of  their case.  Complainant has filed his own affidavit and filed invoice of deep freezer issued by OP 2 and legal notice issued by the complaint in support of his complaint.  OP 1 has filed affidavit of Shri Vivek Kumar, Manager Legal, of OP 1 along with the documents showing the activity undertaken by OP as exhibit OP 1/ colly.

We have heard the complainant and counsel for OP 1 and carefully gone through the documents placed on the file as well as written arguments.  In this case points to be considered are as under : -

(a)     Whether complainant is consumer?

(b)     Whether there is deficiency in service on the part of OPs?

(c)      Relief?

In reply OP1 did not deny purchase of the deep freezer of his company but stated that since the same was purchased for commercial activities the complainant does not come under the category of ‘’consumer’’ as per the provision of Consumer Protection Act.  Complainant has stated in his complaint that he earns his livelihood from his shop and he availed services from OPs by purchasing the deep freezer.  In his affidavit of evidence also complainant has stated that he is living/ running the shop of household articles for his livelihood and has no source of income other than the shop.      

          Hon’ble Supreme Court in the case of Laxmi Engineering Works V/s PSG Industrial Institute, AIR 1995 SC 1428 in Para No. 24 has held as under .

(i)      the explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.06.1993 is clarificatory in nature and applied to all pending proceedings.

(ii)     Whether the purpose for which a person has bought goods is a ‘’commercial purpose’’ within the meaning of the definition of expression ‘‘consumer ‘’ in section 2 (d) of the ACT is always a question of fact to be decided in the facts and circumstance of each case.

(iii)    A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression ‘’consumer’’.

In view of the decision of the Hon. Supreme Court in the above mentioned case and considering the facts stated by the complainant in the complaint we are of the opinion that complainant purchased the deep freezer for the purpose of earning his livelihood by means of self employment hence complainant is a consumer.

In reply OP 1 has admitted that he has repaired the deep freezer whenever any complaint was made by the complainant.  OP 1 further admitted that compressor of the deep freezer was replaced on 11/06/2014 and 10/07/2016.  It is pertinent to mention here that the complainant purchased the deep freezer on 11/03/2014 of OP company for Rs. 16,200/-  and the complaint regarding the non functioning of the same was made on 30/04/2014.  As per the admission of OP 1 on 11/06/2014 and 11/07/2014 on receiving the complaint from the complainant regarding non-functioning of the deep freezer the OP 1 sent the service team who replaced the compressor on the above said dates.

In reply OP 1 has admitted that he has repaired the deep freezer whenever complaint was made by the complainant.  OP 1 has given the tabular form depicting the complaints received and work done by the service team which is as under:  - 

Looking to the admitted facts it is evident that OP 1 sold the defective deep freezer to the complainant which was purchased by the complainant on 11/03/14 for Rs. 16,200/- from OP 2 and first complaint regarding non-functioning of the same was made on 30/04/2014.  The complaint made by the complainant and the service given by OP 1 are sufficient to prove the non-functioning of the deep freezer and above mentioned admissions by OP 1 regarding rectification of leakage of gas, gas charging and replacement of compressor twice prove that deep freezer purchased by the complainant was having manufacturing defect.      

Looking to the above facts and circumstance of the case we direct the manufacturer, OP 1, to refund the invoice amount of Rs. 16,200/- to pay Rs. 5,000/- as compensation for mental agony as well as financial loss and Rs. 3,000/- as cost of litigation to the complainant.  Complainant is directed to return the deep freezer to OP 1 after receipt of the amount.              

This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 10% shall be payable on the entire above mentioned amount till realisation.  Copy of this order be sent to all the parties free of cost.   File be consigned to Record Room. 

          Announced on this  March 10, 2017