IN THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 10^th day of February 2022

Filed on: 25.08.2020

PRESENT:

Shri.D.B.Binu President

Smt.Sreevidhia T.N. Member

C.C.No.240/2020

Complainant :

M.V.Devassykutty, Manjaly House, Chengal, Kalady P.O.,

Ernakulam District-686 691

(By Adv.Tom Joseph, Court Road, Muvattupuzha-686 661)

Vs.

Opposite parties :

1) M/s.IFB Industries Ltd., Regd.Office, 14 Taratolla road, Kolkata-700 088, Rep. by its Managing Director/CEO.

2) M/s.Bismi Home Appliances, Vijaya Arcade, 27/459 (1-4 & 6-9), Angamaly South, Angamaly-683 572, Ernakulam District.

O R D E R

D.B.Binu, President

1) A brief description of the complaint:

The complainant purchased a dish wash, IFB Neptune VX bearing serial No.84221100 from the 2^nd opposite party for Rs. 32,305/-on 18.12.2019. A two-year warranty was provided by the opposite party for the machine at the time of purchase. The complainant alleges that the machine went out of order soon after its purchase. Therefore, the complainant made a complaint to the first opposite party, who is the manufacturer of the product. The opposite party had failed to cure the defects in the machine, though the opposite party had made several attempts to rectify the defects in the machine through their service technicians, who had repaired it on different occasions. The complainant alleges that the recurring defects in the machine are due to the manufacturing defects of the product. The complainant states that a defective product was supplied to him by the opposite party, which amounts to a deficiency in service towards the consumer. Due to the supply of defective products, the complainant states that he had to suffer severe mental pain and hardship due to the loss of the dishwashing facility. The complainant states that he is therefore entitled to get a refund of the cost of the machine paid by him with interest and also for a compensation of Rs.10,000/-for the mental agony and hardship suffered by him. 

 2) Take note of

Consequent to filing this complaint before this Commission, notices were sent by the Commission to the opposite parties. Even though the notices sent to the opposite parties were duly served, as revealed by the proof of delivery of the Postal Department, both of them did not turn up and did not file their version. Furthermore, they were not interested in contesting the case before the Commission. As the opposite parties failed to represent their case before the Commission, the opposite parties were set ex-parte. Therefore, in the instant case, the subject matter of the complaint and the merit of the case are to be examined solely on the basis of the documents, records, and evidence along with the proof affidavit filed by the complainant.

 (3) Evidence

The complainant produced three documents which were marked as filed Exbt. A1 to A3 and Ex-parte proof affidavit. There is no oral evidence from the complainant's side. the opposite parties were set ex-parte.

4) In order to ascertain the genuineness and merit of the case, the following points are to be examined:

(i) Has the complainant established any deficiency in service on the part of the opposing party?

(ii) If so, is the complainant entitled to compensation or relief from the opposite party?

(iii) Cost of the proceedings, if any?

5) Problem No. (i)

The Commission has conducted a thorough probe into the facts of the complaint with reference to the evidence and also to the facts submitted by the complainant in the form of a proof affidavit. In fact, the complainant had produced Exbt.A1 to A3 documentary evidence, among which the Exbt.A1 which is a bill in the form of a taxable invoice bearing No.1125632 dated 18.12.2019, in which it can be seen that the cost of the IFB Dish Wash Neptune is shown as Rs.32,400/-. A2 is a warranty slip issued by the opposite party, wherein it can be seen that there is a warranty for a period 24 months for the dishwash from the date of its purchase, along with other conditions. The Exbt.A3 is a copy of a letter sent by the complainant to the opposite party requesting them to cure the defects in the product and also stating that the complainant had to call the customer service more than seven times since the date of the purchase of the dishwash, in connection with various complaints relating to its repeated malfunctioning. This was also affirmed in the proof affidavit filed by the complainant. Eventually, the opposite parties failed to rectify the defects of the dishwash. Further, the Exht A3 warranty card produced by the complainant shows that the warranty is issued subject to the jurisdiction of the Culcutta Court and/or other judicial or quasi-judicial forums having jurisdiction over the registered office of the company. It is pertinent to note at this juncture that such unilateral conditions imposed by the manufacturer on a consumer are tantamount to unfair trade practice as there is no proof of any legal impediment enabling them to make such claims. It is the privilege of the consumer, as per the Consumer Protection Act, 2019, to approach the Consumer Commission, which has jurisdiction over the place at which the complainant resides, and therefore, the condition laid down by the manufacturer as above shall not stand in the absence of any evidence to substantiate it and hence needs no consideration. Even though an ample opportunity was provided to the opposite parties, in this case, to appear before the Commission by issuing a notice and to prove their side, they had neither turned up nor filed their version. The opposite parties’ indifferent attitude of not having even cared to represent and present their version in a case relating to denial of consumer rights, in fact, unveils their neglect and lack of concern towards the legitimate rights of their consumers. The opposite parties failed to rectify the defects of the dishwash even within its period of warranty and hence it is obvious that they had not exercised the duty, diligence and responsibility mandatorily expected of them while negotiating to address the crucial grievances of the complainant. This is a clear case of res ipsa loquitur – facts speak themselves. The honourable National Commission had extended solace to a similarly placed consumer in Nachiket P. Shirgaonkar Vs Pandit Automotives Ltd, Pune [AIR 2008 (NOC) 2260 (NCC)].

Going through the above facts and the submissions from the complainant, we are of the view that, deficiency of service and adoption of unfair trade practice are explicit on the part of the opposite parties. Hence, point No. (i) is proved in favour of the complainant.

6) Concerns Nos. (ii) and (iii)

For the sake of convenience, we consider points (ii) and (iii) together.

If a new machine recurrently exhibits trouble in a few months of its purchase, the consumer would undoubtedly be dissatisfied. An indifferent and neglectful behaviour on the part of the manufacturer in such contexts will leave the consumer helpless, bewildered and shocked. Nothing is more damaging than the feeling of helplessness. It is pertinent to recollect at this point that the very necessity of consumer protective laws arose mainly due to such a helpless position of consumers. In this case, the complainant had suffered a lot of inconvenience, hardships, mental agony, financial loss, etc. due to deficient service and adoption of unfair trade practice on the part of the opposite parties. Resultantly, the opposite parties are found liable to pay compensation and costs of the proceedings to the complainant.

Since the complainant has sustained deficiency in service and unfair trade practice from the opposite parties, we are of the opinion that the opposite parties are liable to pay the following relief to the complainant:

7) As a result, the complaint is partially allowed, and we direct as follows:

(1) The opposite parties shall pay the complainant Rs. 32,305/-, as evidenced by the document Exbt.A1 produced by the complainant.

2) The opposite parties shall pay the complainant Rs. 3,000/- as compensation for the mental anguish he has endured.

3) The opposite parties shall also pay the complainant Rs. 2,000/- towards the cost of the proceedings.

4) The opposite parties' liability shall be joint and several.

All these above mentioned directions shall be complied with by the opposite parties within 30 days from the date of receipt of a copy of this order.

Pronounced in the Open Commission on this, the 10^th day of February 2022

Sd/-

D.B.Binu, President

Sd/-

Sreevidhia T.N., Member

Forwarded by Order

Senior Superintendent

APPENDIX

Complainant’s Exhibits

Opposite party’s Exhibits :: Nil

Date of Despatch

By Hand ::

By Post ::

C.C.No.240/2020

ORDER DATED 30.12.2021