RESERVED

         STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                       APPEAL NO. 1444 OF 2018

             (Against judgment and order dated 26-06-2018 in Complaint Case

           No. 141/2014 of the District Consumer Forum, Gautam Budh Nagar )

Rajiv Kumar Singh

Flat No. B-603

Kesar Garden Apartments

D-35A/2, Sector-48

Noida-201304 Uttar Pradesh

                                                                                           ...Appellant

                                                           Vs.

01.Chairman & Managing Director

M/s Whirlpool of India Limited

Whirlpool House Plot No.40, Sector-44

Gurgaon-122002, Haryana

02.Chairman & Managing Director

     Consumer Service (Head Office)

     28 N.I.T. Faridabad, Haryana

03.Manager, Westrn Refrigerator Company

     (Authorized Service Franchisee of Whirlpool)

    C/245, Sector-63 Noida

    Uttar Pradesh

                                                                                                ...Opposite Parties

  BEFORE:

  HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

  HON’BLE MR. SUSHIL KUMAR, MEMBER

  For the Appellant         :    Sri Dhananjay Srivastava, Advocate.

  For the Respondent      :    Sri Muzeeb Effendi, Advocate.          

  Dated :  22-08-2022

                                                  JUDGMENT

                  MR. JUSTICE ASHOK KUMAR, PRESIDENT

This is an appeal filed before State Commission under Section-15 of the Consumer Protection Act 1986 against order dated 26-06-2018 passed by District Consumer Forum, Gautam Budh Nagar in Complaint Case No. 141 of 2014 Rajiv Kumar Singh V/s Whirlpool and others whereby the District Consumer Commission has dismissed the complaint

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and passed order which reads as follows:-

“निर्णय लिखाते समय पत्रावली का अवलोकन किया। परिवादी ने अपने परिवाद पत्र में वाशिंग मशीन खरीदने का दिनांक 01.03.2008 तथा विन्‍डो ए0सी0 खरीदने का दिनांक 19.10.2008 दर्शाया गया है, तथा परिवाद दिनांक 04.10.2013 को लगभग 5 वर्ष बाद दाखिल किया गया है, तथा वाद का कारण वारंटी अवधि अथवा ए0एम0सी0 के आधार पर निर्धारित किया जाना अंकित है। निश्चित रूप से दोनों ही सामानों का वारंटी अवधि समाप्‍त हो चुका है। क्षेत्राधिकार विपक्षी सं0 3 से उक्‍त दोनों सामान खरीदने के आधार पर क्षेत्राधिकार बनाया है, क्‍योंकि वारंटी अवधि समाप्‍त हो चुकी है। अब विपक्षी सं0 3 को पक्ष बनाये जाने के आधार पर क्षेत्राधिकार का निर्धारित किया जाना उचित नहीं है, जहॉं तक ए0एम0सी0 का सम्‍बध है, वह कम्‍पनी द्वारा की जाती है, और उसी के द्वारा बढ़ाई जाती है, तथा ए0एम0सी0 के आधार पर जो वाद का कारण दर्शाया गया है, उसके द्वारा इस फोरम को वाद के श्रवण का क्षेत्राधिकार नहीं है, क्‍योंकि विपक्षी सं0 1 व 2 हरियाणा के हैं। इसी आधार पर परिवादी का परिवाद निरस्‍त होने योग्‍य पाया जाता है। परिवादी का परिवाद निरस्‍त किया जाता है। पत्रावली दाखिल दफ्तर की जाये।“

Feeling aggrieved by the order passed by the learned District Consumer Commission, Gautam Budh Nagar the appellant has filed this appeal.

We have heard learned Counsel Sri Dhananjay Srivastava who appeared for appellant.

Learned Counsel Sri Muzeeb Effendi appeared for the respondent.

In brief relevant facts for determination of this appeal are that the

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complainant purchased a washing machine of Whirlpool Company Model No. 7230 on 01-03-2008 from the authorized service dealer of the Whirlpool and paid a sum of Rs.16,700/-  inclusive of all taxes and expenses. In complaint it has been stated by the complainant that the machine start showing the manufacturing defect within the week from its sale as its panel belt was breaking repeatedly and as the machine was under warranty the company never generated any receipt or document pertaining to that defect beside repairing it manually on every oral complaint made by the complainant. The engineer used to visit sometime from the authorized service franchisee office based at Noida and sometime from the consumer service H.O. of Whirlpool based at District Faridabad, Haryana.

The complainant has further alleged that in the month of September-October, 2008 within six months of sale the machine became severely defective and became non operational for several days and on the repeated calls of complainant the machine was finally got repaired with some of its inherent component like Stabilizer. Motor drive, inlet system valve and C.P. got replaced for which the complainant paid Rs.7,358/-. Inspite of repairs on various occasions the machine was continuously showing some technical problem to the great inconvenience of complainant for which the complainant used to make regular calls on toll free number of customer care. Thereafter the complainant was subjected to buy AMC (Annual Maintenance Charge) for Rs.3,299/- on 01-03-2009 which was valid for two years. Whenever the complainant used to ask for repairs before purchasing AMC plan the respondents used to make frivolous excuses of non availability of the repair parts and showing inability to act on complainant request but after purchasing additional AMC in spite of machine under warranty same respondents used to pursue his complaint without any hurdle or lame excuses.

It is alleged by the complainant in complaint that on 12-03-2011 the machine again gone non operational and not doing proper washing and on phone call the component called ‘Inlet Valve’ was finally replaced. In 2012 the PCB failure occurred in the machine which was replaced on payment of

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Rs.3,480/-.

On 19-07-2012 the complainant again purchased second AMC for Rs.2,350/- which was valid till 18-07-2013. The complainant was purchasing AMC every time because the machine was repeatedly showing defects and complainant invested heavy amount on those machines to keep them uptight. On 14-08-2012 the washing machine was taken to workshop as in spite of PCB replacement it was still not working properly. On 25-08-2012 the defective machine was delivered back with component called intel value which was replaced for Rs.150/-.

It is further alleged by the complainant that in the month of May, 2013 again the PCB failure occurred while the second AMC was still continuing. The machine was out of order for 45 days. The company neither informed the status of repair while keeping machine to itself nor responded after repeated reminders. On 19-07-2013 the complainant purchased third AMC for Rs.2,500/- which was valid for one year. The complainant served the opposite parties a notice dated 11-09-2013 with speed post asking for refund alongwith all the expenses incurred by him on machine.

It is submitted by the complainant that on 19-10-2008 the complainant purchased Air Conditioner for Rs.20,000/- inclusive of all taxes and expenses from the authorized franchise of  Whirlpool situated at Noida with warranty of 5 years. The machine was however, installed in April, 2009 only. On 28-04-2010 the complainant purchased AMC for Air Conditioner which was valid for two years. The complainant alleged that inspite of repeated calls the respondents never made any visit for regular free service which was due to him before the purchase of AMC by the complainant.

On 11-03-2011 during the first service for which the company charged Rs.390/- in violation of the AMC contract the respondent caused irreparable damage to the machine and damaged the compressor and the air conditioner was not usable for over 40 days till 20-04-2011 and since then the machine has failed to give desirable cooling.

On 15-04-2011 the air conditioner was taken to workshop as there

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was a problem of gas leak. The machine never showed any expected result and opposite parties never acknowledged that there was a fault on their part who caused damage to the machine. The machine remained out of order for whole season in the year 2012 and complainant suffered badly which also caused ill effect on his health.

It is further alleged by the complainant that on 19-07-2012 the complainant again purchased AMC for one year expiring on 18-07-2013 for a sum of Rs.2,015/-. On 19-07-2013 the complainant was subjected to purchase another AMC valid for one year and when he made contact for service he was simply handed over the telephone number of service centre and nobody has visited from the respondent side. On 11-09-2013 the complainant served the opposite parties a notice for both the appliances with speed post asking for refund alongwith all the expenses incurred by him on machine.

The complainant has further alleged in the complaint that he is a consumer under Section 2(d) and the respondent is service provider offering service as per provision under Section 2(o) of the Consumer Protection Act 1986. The appliances were purchased from authorized dealer of Whirlpool situated in Noida and installed at complainant’s residence situated in Noida and both the appliances became defective as reported by complainant from Noida so cause of action is proved to be invoked at Noida under the territorial jurisdiction of District Consumer Forum of Gautam Budh Nagar.

It is alleged by the complainant that the cause of action is a continuing one as the defect in the appliances occurred before the expiry of warranty which persisted even after the expiry of it. The machine was showing defects in its working till late October, 2013 and complaint was filed in 2014 thus the complaint is very much under limitation period from the date of the cause of action.

Consequently feeling aggrieved by the action of opposite parties the complainant has filed complaint before the District Consumer Commission against above opposite parties for the deficiency in service

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and unfair trade practice seeking following reliefs.

1. Refund/return the entire consideration money i.e. Rs.41,700/- (Rupees Forty One thousand Seven hundred only) paid by complainant upfront towards the aforesaid two products, including the money spent on Whirlpool recommended accessories for these products at the time of their installation. I have no faith in their after sales/AMC services and therefore, the respondents be directed to reclaim these products forthwith.
2. Pay interest @ 18% per annum on the aforesaid amount w.e.f. the date of purchase of both the products and Whirlpool accessories.
3. Refund/return the entire consideration of Rs.14,004/- (Rupees Fourteen Thousand and Four only) paid by the complainant towards availing the AMC services for the aforesaid two products.
4. Pay a compensation to the tune of Rs.2,00,000/- (Rupees Two Lacs only) for financial loss and mental harassment suffered on account of the aforesaid acts constituting negligence, cheating, unfair trade practices, restrictive trade practices and gross deficiency of service on part of OP-1, OP-2, OP-3 and other individually, jointly and severally.
5. Respondents be directed to blacklist and de-panel M/s Western Refrigeration Company, NOIDA from performing after sales/AMC services on behalf of the respondent company immediately.
6. Order payment of Rs.5,00,000/- (Rupees Five Lacs Only) as a compensation for causing immense mental agony, tremendous anxiety, inconvenience, untold mental trauma and inconvenience to the Complainant. Needless to mention that the complainant is an extremely busy professional and a patient of chronic hypertension. Besides he has old parents and school going children. The aforesaid conduct of the respondent Company has adversely impacted the health of the complainant, his family and his parents by putting chronic and undue strain on them as the appliances purchased for their comfort became undependable and unreliable besides being a source of constant headache and inconvenience. On many occasions my wife and old mother had to

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end up manually washing clothes. We also had to face hot and humid climate right since 2011 April despite having an Air Conditioner installed at home. The Air Conditioner was installed specifically for my father who is a heart patient, having undergone heart surgery twice. Having invested in the appliances and having committed his resources, the complainant could not even get rid of them. I am a service class person with meagre means. It is as a matter of last resort that the complainant had to knock on the doors of the Forum for justice. The Company deserves no leniency on this account.

7. Order payment of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) towards the cost of this litigation.
8. Direct payment of penal interest in case the company fails to comply with the orders of the Hon’ble Forum within 30 days.
9. Any other order/directions that the Hon’ble Forum may deem fit under the circumstances of the case.

We have heard Sri Dhananjay Srivastava, learned Counsel for the appellant and Sri Muzeeb Effendi, learned Counsel for the opposite party and perused the impugned order as well as records.

It is contended by learned Counsel for the appellant that the impugned order passed by District Consumer Commission is a non speaking order without recording any observation, reason of findings and without considering any evidence put up on record and argument advanced by appellant.

Learned Counsel for the appellant has contended that the impugned order passed by the District Consumer Commission is against law and fact. Section13 Sub Section 4 of the Consumer Protection Act 1986 provides that the District Consumer Commission shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 while trying a suit.

It is further contended by learned Counsel for the appellant that the District Consumer Commission has not acknowledged that the subject matter of dispute the ‘Washing Machine’ and the ‘Air Conditioner’ both of it were purchased by complainant from the authorized service franchise of Whirlpool situated in Noida in 2008. Both the machines were installed at the complainant’s house situated in Noida and soon within the months of

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their placement both the machines starts showing defects. The District Consumer Commission has given the wrong finding that no order can be passed against the opposite party No.3 due to the limitation period for admitting any complaint against both the appliances is expired as their warranty period also finished and opposite party No.01 and 02 arrayed in complaint is beyond the territorial jurisdiction of the District Consumer Commission to pass any order for giving any direction.

It has further been contended by the learned Counsel for the appellant that the District Consumer Commission filed to appreciate the documents on record which prove that the air-condition appliance was purchased on 19-10-2008 having five years of warranty which was further renewed by way of service warranty for which the requisite amount as directed by the dealer was paid and while the complaint was filed in the year 2014, thus the complaint against air condition is well within limitation period provisioned under the Act as it was filed within a months after the expiry of warranty period of five years.

It is argued by the learned Counsel for the appellant that the District Consumer Commission failed to appreciate that though the warranty period for ‘washing machine’ was two years but it started showing manufacturing defects within two months from very beginning just after its sale. It severely got breakdown in October, 2008 and many of its components were replaced for which the complainant paid Rs.7,358/-. The District Consumer Commission failed to consider that from very beginning the washing machine was showing severe defects during warranty period due to which may of its parts were replaced. The complainant has purchased AMC from time to time but still nobody attended him properly. The washing machine remained at workshop for many days and when it was returned in 2013 after getting so called repaired it was still unfunctional. In 2012 the air conditioner was remained out of order for whole season and in spite of complainant purchase annual maintenance charge he was made to suffer by opposite parties. The complaint is very much maintainable and within limitation and jurisdiction of the District Consumer Commission and cause of action still continuing till the complainant get the full monetary claim for

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 the sale of defective product.

Learned Counsel for the appellant has argued that it is maintained in catena of judgments and various orders passed by Hon’ble National Commission and various State Commissions that the consumer has right to claim compensation if defects continue to persists immediately after expiry of warranty. It is also maintained by various courts of law that if the problem persisted and repairs were done continuously the limitation period for filing the complaint cannot be computed from expiry of warranty but from the date when the parts were replaced after warranty period. The complaint is fully covered under Section 11 subsection (2) clause (a) and clause (b) of the Consumer Protection Act, 1986.

Learned Counsel for the appellant has argued that the opposite parties have appointed Authorised Dealer and Service Centre at Noida to carry on business on their behalf and therefore, the opposite parties are clearly working for gain within the jurisdiction of the District Consumer Commission. Therefore, the jurisdiction of the District Consumer Commission is attracted on this ground, in line with Section 11(2)(b) of the Consumer Protection Act 1986. In the instant case the jurisdiction of the District Consumer Commission is completely and validly attracted as the Cause of Action has wholly arisen at Noida.

It is contended by learned Counsel for the appellant that the District Consumer Commission, Gautam Budh Nagar is well competent to adjudicate on the matter as cause of action lies in Noida. There is Principal-Agent relationship between the opposite party Nos. 01 and 02 and opposite party No.03 and as such they are vicariously liable for any act of deficiency done by dealers based in Noida, U.P.

It is argued by learned Counsel for the appellant that the order of the learned District Consumer Commission is manifestly illegal, perverse and contrary to the material evidence on record and hence liable to be set aside.

Learned Counsel for the appellant has placed reliance on following judgments of Hon’ble National Commission as well as State Commission.

1. K. Yusuf Basha and others V/s Bharath Earth Movers Limited decided by Hon’ble National Commission on 29-05-2012.
2. M/s. Gmt Systems V/s Mr. K. D. Joseph decided by State Commission, Thiruvananthpauram on 30-06-2010.

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3. Bishamber Nath Sikka V/s Tata Motors Limited decided by Delhi

State Commission and later upheld by Hon’ble National Commission reported in IV (2008) CPJ 131.

04.Managing Director V/s M S Biyani Diagnostics decided by State Consumer Forum, Mumbai at Aurangabad Circuit on 14-06-2013.

We have also heard Sri Muzeeb Effendi, learned Counsel for the respondent at length.

We have considered the submission made by learned Counsel for the parties.

After hearing learned Counsel for both the parties at great length we proposes the learned Counsel for the opposite party to settle the matter amicably and reserved the judgment.

After the judgment is reserved and before pronouncement of the judgment  Sri Muzeeb Effendi, learned Counsel for the opposite party has submitted an application before this Court and also informed the Court that the opposite party is ready to provide new ‘Washing Machine’ and ‘Air Conditioner’ of same capacity to the complainant, subject to condition that the appellant shall return the old product at the time of replacement, within a period of one month from the date of production of certified copy of the judgment. The contents of the letter is reproduced below:-

“BEFORE THE HON’BLE U.P. STATE COMMISSION, LKO.

                                                                    APPEAL NO. 1444/2018

            RAJIV KUMAR SINGH                                                     .... APPELLANT

                                                                Vs

            WHIRLPOOL OF INDIA LTD.                                     .... RESPONDENT

AND OTHERS

APPLICATION FOR SETTLEMENT OF APPEAL

The above mentioned respondent humbly submits as under:-

1. That in the above noted matter the Respondent M/s WHIRLPOOL OF INDIA is ready to replace the Washing Machine & AIR CONDITIONER of Appellant with new Washing Machine & Air Conditioner of same capacity.
2. That above replacement of product is subject to condition that

Appellant shall return the old product at the time of replacement.

Wherefore it is most graciously be prayed that FINAL ORDERBE PASSED IN THE LIGHT OF ABOVE THEREBY PLACING the Respondent under a heavy burden of gratitude.

Counsel for Whirlpool of India Ltd.

Dated: 02-08-2022M. Effendi, Adv.”

We have heard the Counsel for the opposite party Sri Muzeeb Effendi and perused the application moved by the learned Counsel for the opposite party dated 02-08-2022 and we are happy that the learned Counsel for the opposite party Company has persuaded to the opposite party Company/the management of the opposite party company to settle the issue as desired by this Court amicably. We are happy that the Company is ready to provide new ‘washing machine’ and new ‘air conditioner’ to the appellant after return of the old product which were purchased by the appellant from the opposite party long back in the year 2008. Therefore, the opposite party is directed to comply with the order as passed by this Court by handing over the new ‘washing machine’ and new ‘air conditioner’ (Split Unit or window unit whichever is required by the complainant/appellant) within a period of 30 diays from the date of production of certified copy of this order.

                                      ORDER

The appeal is therefore allowed. The order passed by the learned District Consumer Commission is set aside.

Let copy of this order be made available to the parties as per rules.

The Stenographer is requested to upload this order on the website of this Commission at the earliest.

             ( JUSTICE ASHOK KUMAR )                    ( SUSHIL KUMAR )

       PRESIDENT                                             MEMBER

           Pnt.