FINAL ORDER

Samaresh Kumar Mitra,Member.

   The complainant files this complaint u/s 12 of C. P. Act, 1986 praying for Rs.30,000/-for hazards and sufferings and Rs.15000/- for litigation cost and total claim of Rs.45000/-.

 The case of the complainant is that he had bought a water purifier- whirlpool Pura Fresh deluxe from the OP at a price of Rs.9867.84 on 20.01.2012. Thereafter he was asked to install a munting plant amounting to Rs.600/- which he bought on 25.01.2012. After using a few months he found that the Purifier is not functioning properly. The Plus Sediment Filter has to be changed time and again, literally every month. He was never intimated about this mechanism when he bought the product. He further paid a sum of Rs.1420/- on 28.9.2012 for Pre filter and Rs.510/- on 27.12.2012 for Plus Sediment filter within the warranty period. He firmly believed it to be a onetime investment for proper functioning of the water purifier. However, within a span of 12 months, he had to change the plus sediment filter time and again and he has already borne cost of Rs.12397.84 for the proper functioning of the said water Purifier. The complainant was completely misguided and misled by the OP and unnecessarily harassed the complainant within the warranty period. The complainant has made several requests by letters and over phone to the Great Eastern Trading Co. to replace the defective water Purifier but all his requests went in vain. The complainant had sent a legal notice through his Ld. Advocate on 15.5.2013 seeking replacement of the same with a proper water Purifier within a month. Getting no satisfactory reply from the OP the complainant filed the instant complaint before this Forum for relief as prayed in the prayer portion of the complaint petition. 

The OP No.1 appeared by filing vokalatnama and denied the allegations as leveled against him and averred that he is the dealer of different electronic goods of the different companies and it is the duty of the concerned company to give free service and that apart this OP No.1 has no knowledge further. He only sales product after purchased from the concerned companies/ manufactures and after sale the product he informed the concern company to give post sales service directly as per warrantee given by them. Be it also mentioned here that the complainant purchased the product as per his choice and after purchase the machine was ok. But due to some water problem it would happen. Until or unless this petitioner proved prima facie before this Ld. Forum that the machine was faulty with documentary evidence he is not entitled to any relief as prayed for.

The OP No.2 files written version denying the allegations as leveled against him and he averred that the Whirlpool of India Ltd. is the manufacturer of consumer durable goods, namely refrigerators, washing purifier, water purifier, microwave oven etc. The OP no.1 is the dealer of such consumer durable goods and the answering OP is the service center of the manufacturer. The complainant purchased one water purifier being Whirlpool Purafresh Deluxe on Jan.25,2012 of his choice from OP No.1, the dealer and the same was being duly delivered upon the complainant by the dealer and the same was being received by the complainant. When the purifier as alleged was not working and on inspection it was detected that the plus sediment filter was needed to be replaced. Accordingly the same was replaced on September28, 2012. Thereafter the Plus sediment filter and carbon filter was needed to be replaced on complaint. The said purifier comes with an warranty for a period of one year but the warranty card specifically mentions that consumable components such as filters and reverse osmosis membrane is not covered by warranty. It is further stated that if the machine is improperly handled or is not cleaned as per the manual there is a wide possible chance of the purifier not to work and in that case the manufacturing company is not liable. This answering OP is bound by the manufacturer’s terms and conditions of warranty and in as much as replacement charges were taken in terms of such warranty clauses. The answering OP states that the alleged defect is not at all a manufacturing defect. The answering OP has charged for changing the plus sediment filter and carbon filter as the same are not covered by the warranty. 

 OP No.3 also appeared by filing written version denying the allegations as leveled against him and averred that this forum has no jurisdiction to entertain and adjudicate the present complaint. He is the corporate office at Whirpool House, plot no 40, sector44, Haryana, India, Gurgaon-122002. The complainant has not sought any permission of this Ld. Forum under sec 11(2) (b) of Consumer Protection Act, 1986 clearly prohibits institution of any complaint before the District Consumer Disputes Redressal Forum if any or all of the OP reside outside the territorial jurisdiction of Ld. District  Forum. This complainant alleged manufacturing defect in the purifier in question. It is pertinent to mention here that alleged manufacturing defect cannot be determined on the simpliciter oral submissions of the complainant and needs a proper analysis test report to confirm the same. It is also worthwhile mentioning here that present complaint is filed without any expert opinion which will prove that the purifier is not working properly and merely by oral assertions of the Complainant. This complainant sought the relief of replacement/ refund of the purchase price for the said purifier. It is submitted that refund/replacement is permissible neither in law nor under the terms of warranty policy. He is merely service center.

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

The OP filed evidence on affidavit which is nothing but replica of his written version.

OP no.2 filed written notes of argument and Op No.1 prayed to accept the same, which are taken into consideration for passing final order.

 Argument as advanced by the agents of the parties heard in full.

 From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

   1. Whether the Complainant   Sri Protip Malakar, ‘Consumer’ of the opposite party?

   2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

   3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

   4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Sri Protip Malakar is a ‘Consumer’ of the opposite party?                  

    From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. The complainant paid consideration money to the OP and purchased goods for his personal usage and the OP received the same is admitted in his written version, so this complainant being a purchaser of the goods   sold/ manufactured by the OP is entitled to get service from the OP.

 (2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

   Both the complainant and opposite party are residents/carrying on business within the district of Hooghly and cause of action took place within the district. The complainant prayed  for Rs.30,000/-for hazards and sufferings and Rs.15000/- for litigation cost and total claim of RS.45000/-from the OP  ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?         

 The case of the complainant is that he had bought a water purifier- whirlpool Pura Fresh deluxe from the OP at a price of Rs.9867.84 on 20.01.2012. Thereafter he was asked to install a munting plant amounting to Rs.600/- which he bought on 25.01.2012. After using a few months he found that the Purifier is not functioning properly. The Plus Sediment Filter has to be changed time and again, literally every month. He was never intimated about this mechanism when he bought the product. He further paid a sum of Rs.1420/- on 28.9.2012 for Pre filter and Rs.510/- on 27.12.2012 for Plus Sediment filter within the warranty period. However, within a span of 12 months, he had to change the plus sediment filter time and again and he has already borne cost of Rs.12397.84 for the proper functioning of the said water Purifier. The complainant was completely misguided and misled by the OP and unnecessarily harassed the complainant within the warranty period. The complainant has made several requests by letters and over phone to the Great Eastern Trading Co. to replace the defective water Purifier but all his requests went in vain. The complainant had sent a legal notice through his Ld. Advocate on 15.5.2013 seeking replacement of the same with a proper water Purifier within a month.

The OP No.1 denied the allegations as leveled against him and averred that he is the dealer of different electronic goods of the different companies and it is the duty of the concerned company to give free service and that apart from this OP No.1 has no knowledge further. He only sales product after purchased from the concerned companies/ manufacturers and after sale the product he informed the concern company to give post sales service directly as per warrantee given by them. But due to some water problem it would happen. Until or unless this petitioner proved prima facie before this Ld. Forum that the machine was faulty with documentary evidence he is not entitled to any relief as prayed for.

The OP No.2 denied the allegations as leveled against him and he averred that the Whirlpool of India Ltd. is the manufacturer of consumer durable goods, namely refrigerators, washing purifier, water purifier, microwave oven etc. The OP no.1 is the dealer of such consumer durable goods and the answering OP is the service center of the manufacturer. The complainant purchased one water purifier being Whirlpool Purafresh Deluxe on Jan.25,2012 of his choice from OP No.1, the dealer and the same was being duly delivered upon the complainant by the dealer and the same was being received by the complainant. When the purifier as alleged was not working and on inspection it was detected that the plus sediment filter was needed to be replaced. Accordingly the same was replaced on September28, 2012. Thereafter the Plus sediment filter and carbon filter was needed to be replaced on complaint. The said purifier comes with an warranty for a period of one year but the warranty card specifically mentions that consumable components such as filters and reverse osmosis membrane is not covered by warranty. It is further stated that if the machine is improperly handled or is not cleaned as per the manual there is a wide possible chance of the purifier not to work and in that case the manufacturing company is not liable. The answering OP has charged for changing the plus sediment filter and carbon filter as the same are not covered by the warranty. 

 OP No.3 by filing written version denied the allegations as leveled against him and averred that this forum has no jurisdiction to entertain and adjudicate the present complaint. This complainant alleged manufacturing defect in the purifier in question. It is pertinent to mention here that alleged manufacturing defect cannot be determined on the simpliciter oral submissions of the complainant and needs a proper analysis test report to confirm the same. It is also worthwhile mentioning here that present complaint is filed without any expert opinion which will prove that the purifier is not working properly and merely by oral assertions of the Complainant. This complainant sought the relief of replacement/ refund of the purchase price for the said purifier. It is submitted that refund/replacement is permissible neither in law nor under the terms of warranty policy.

 After going through the case record, documents and hearing the parties it appears that since purchasing, the Purifier of the complainant is suffering from defects in the filters as a result he compelled to change the filters in his expense and it is admitted in the written version of the opposite party.  The warranty card of whirlpool of India limited warrants to the purchaser of the whirlpool RO system, provided the RO system continues and remains in the possession of and used by the purchaser as from the date of purchase. RO system warranty for one year. WOIL’s obligation under the warranty shall be limited to remove the defect & make the product functional by repair or replace of a defective part with a functional part in respect of the said RO system product within one year from the date of original purchase and which on WOIL’s examination discloses to its satisfaction to be defective. The warranty card stated the limitation of warranty  in which about all the parts are beyond the limitation and it can be presumed that any defect reveals then it may cause due to bad handling of the purchaser /user and removal of such defects  by the service provider is chargeable. So, what is the necessity of providing the warranty period of one year? Is it merely eyewash of the companies to promote sale of goods? From the case record it appears that the Water Purifier is defective immediately after the installation. And the complainant opted service at his expense. Subsequently the complainant prayed to replace the said water filter when the machine became out of order. But the prayer of replacement of the said machine was turned down by the OP. As a result the complainant getting no alternative filed the instant complaint for Redressal. From the face of the case record it appears that OP No.2 admitted that the machine became nonfunctional since the purchase as he replaced the filters as the cost of the complainant to make it operational but he could not. The OP No.1 assailed regarding the after sale service by the Company & its service centre for the sake of its consumers. So the OP destructed the myth of goodwill of a business by not providing after sale service to this Complainant, on the other hand opposite party always tried to save their skin by the limitation of warranty.  Non providing of service on the part of OP tantamount to deficiency of service.    

   Going by the foregoing discussion hence it is ordered that the complainant  abled to prove the deficiency of service of the OP for non providing service to this complainant by adducing cogent document/evidence so the complainant is entitled to get the water Purifier of same brand and value in default refund of price including service taxes. The OP No.3 being the manufacturing company is under liability to replace the said water purifier.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved the deficiency of service of the OP in respect of non providing service to this complainant. So the opposite party No.3 is under liability to replace the defective water purifier by a new one of same features in default  he shall refund the cost price of the said water purifier including service charges within 45 days from the date of this order.

ORDER

       Hence, it is ordered that the complaint case being No.90/2013 be and the same is allowed on contest against the opposite party No.3, with a litigation cost of Rs.8000/-.      

    The Opposite Party No.3 is directed to replace the impugned water purifier of the complainant having same features and cost in default refund the cost price including the service charges within 45 days from the date of this order

     At the event of failure to comply with the order  the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

      Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.

          Dictated and corrected by me. Samaresh Mitra, Member.