Complainant Dr.Jeet Singh has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) to seek a direction to the opposite parties to refund Rs.35,000/- to him alongwith interest @ 24% P.A. Opposite parties be further directed to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation expenses to him.
2. The case of the complainant in brief is that he and his wife is a reputed doctor. He has purchased a IFB Washing Machine (Executive UX 8 Kg IFB) on 22nd Oct.2014 vide Retail Invoice/Bill No.420 for Rs.35,000/- from opposite party no.2. On the very next day, when he and his wife tried for using the said machine, it did not function at all and he informed the opposite party no.2 immediately, then IFB Technician of the opposite party no.2 came and attended the complaint but he could not find any fault in the machine. Thereafter, a senior technician came and said that some water inlet valve/pump is not functioning due to manufacturing defect. He approached the opposite party no.2 and requested them to replace the machine as he did not use the machine even for a single time but opposite party no.2 behaved with him rudely and used very rough language. Washing Machine is not in working order and is not functioning since the day of purchase. Even he informed the opposite party no.1 directly telephonically also and on 27 October complaint was also registered by opposite party no.1. Thereafter, he approached the opposite parties no.1 and 2 several times by calling them on telephone and visiting personally and they assured him that they will replace the washing machine or will return his hard earned money within 2/3 days but of no avail. He has further pleaded that finally after 15 days, he approached the opposite party no.2 who instead of replacing the machine or returning the money told him that he can do whatever he likes and refused to return the money and replacing the machine. The opposite parties intentionally evading from fulfilling their part and harassing him by committing deficiency in service and this act of the opposite parties is not fare and in unconstitutional. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 has appeared through their counsel and filed the written reply taking the preliminary objections that complaint is not maintainable in the present form and is liable for dismissal. The complainant has not approached to this Hon’ble Forum with clean hands and has concealed the material facts in the complaint. The present complaint is liable to be dismissed under section 26 of the Act, for being false, vexatious, frivolous and baseless. The complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the opposite party no.1. It was further submitted that the appliance sold to the complainant is of highest quality and the complainant has taken delivery of the appliance, after PRE-Delivery inspection and entire satisfaction and fully complies with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the appliance. The complaint makes out no ground for relief under the provisions of Section 14 of the Consumer Protection Act,1986. It was next submitted that complainant had prayed for the refund of price, interest there upon and compensation etc. The prayer of the complainant is beyond the warranty terms. Opposite party no.1 cannot be held liable for any independent act and omission, if any, committed by the other opposite party. The complainant has filed this baseless complaint alleging manufacturing defects in the machine. On merits, it was submitted that the complainant has purchased the appliance for commercial purpose and as regularly utilizing the same for commercial purpose of clinic run by the complainant and his wife. As such the complainant is not a consumer and the present complaint is not maintainable. There is no complaint of water level/water inlet valve/pump functioning in the appliance and there is no manufacturing defect in the appliance. The allegations of misbehavior, utilizing rough language etc are false and baseless. It has been further stated that the washing machine is installed at clinic of the complainant namely Dr.Jeet Singh Diagnostic Centre, Dhangu Road, Pathankot and such appliance utilized for the commercial purpose is not covered under the warranty terms. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Notice issued to the opposite party no.2 had not received back and none had come present on its behalf, so, it was proceeded against exparte vide order dated 02.1.2015.
5. Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C7 and closed the evidence.
6. Sh.Hakam Sharma, Officer IFB Industries of opposite party no.1 tendered into evidence his own affidavit Ex.OP1/1, alongwith other documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence.
7. We have carefully gone through the pleadings of both the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.
8. We have critically examined the produced exhibits to interpret the purpose and meaning of each one of these. Firstly, we are inclined set-aside the OP1 manufacturers’ ill- conceived plea of ‘commercial purpose’ since the IFB washing machine was neither purchased for the purpose of ‘re-sale’ nor for ‘washing’ clothes of the public in general. The Washing machine was for washing the clothes/linen at the complainant run private Hospital as collateral activity whereas the main principal task has been to ‘provide’ medical treatment to its patients and as such and also as per the settled principle in law the ‘use’ does not fall under the ‘exclusion’ clause of commercial purpose under the Act. Further, we find that the OP2 vendor preferred the ‘ex-parte’ absence giving prompt to the ‘presumption’ that he had no defense to plead before the Forum. The OP1 manufacturer has rightly pleaded its ‘refuge’ in the settled principle on ‘principal to principal’ basis and moreover had no direct sales ‘touch n contact’ with the complainant. No doubt, the complainant has not categorically brought out any ‘inherent manufacturing defect’ but the ‘non-functioning’ of the Machine and the ‘non-attendance’ to his complaint for full one month are sufficient Ex.C4 to call for a justifiable ‘refund’ of its Ex.C5 cost price with interest. To top it all, the complainant was forced to buy the new LG machine Ex.C6 within 35 days of the first purchase.
9. In the light of the all above, we find and hold the OP2 vendor along with the OP1manufacturing company both guilty of ‘unfair trade practice coupled with deficiency in service’ and thus partly allowing the present complaint, we ORDER them to refund the full cost price of the sold Washing Machine in question i.e., Rs.35,000/- to the complainant along with interest @ 9% PA from the date of filing of the compliant besides to pay him Rs.5,000/- as cost and compensation for causing him unnecessary harassment within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall further attract interest @ 9% PA from the date of the orders till actually paid.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
May, 15, 2015. Member
*MK*
