This case is coming for final hearing on 20-02-2015 in the presence of Sri N.V.N.Raju, Advocate for Complainant and Sri Gudla Ramesh, Advocate for Opposite Parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The present complaint is filed under Section 12 of C.P.Act against Opposite Parties 1 & 2. The Complainant requested the Forum to direct the Opposite Parties 1 & 2                                                                                                                                                        a)To pay an amount of Rs.10,700/- i.e. the value of the Washing Machine along with interest @ 24% p.a. from the date of purchase i.e. 18.05.2011 till realization by taking the defective washing machine lying with the complainant.                                                   b) To pay Rs.25,000/- towards compensation for deficiency of service on the part of Opposite Parties c) To pay Rs.10,000/- towards the mental agony d) To pay Rs.5,000/- towards costs for legal expenditure.

2. The brief averments are as follows: The complainant submits that when the Complainant wants to purchase a new Washing Machine and approached the 1^st Opposite Party, the staff of the Opposite Party advised to purchase the Washing Machine manufactured by the 2^nd Opposite Party i.e. IFB Washing Machine. Basing upon the advise of the staff complainant purchased Model No.AW608061 with Sl. No.101-200262 Washing Machine from the 1^st Opposite Party for an amount of Rs.10,700/- on 18.05.2011. The Warranty for the Washing Machine is for a period of 2 years which is subsisting till date. The performance of the Washing Machine is very poor and the Washing Machine was washing the clothes of the complainant with poor quality. As such that it was informed to the 1^st Opposite Party, a Service Engineer from 1^st Opposite party observing the Washing machine and the said Service Engineer Sri Ramesh has confirmed that the machine is in helpless situation. Basing upon the opinion of the Service Engineer of 1^st Opposite Party, Complainant approached the 1^st Opposite Party on 27.09.2011 and requested to provide new Washing Machine in place of defective one. Initially the Opposite Parties 1 & 2 promised to replace the washing machine with new one but they are dodging the said issue with one or other reason. There upon the Complainant gave 5 complaints to the Opposite Party with regarding to the defect in the Washing Machine vide (1) No.7112128, dt.08.09.2011 (2) No.8536600, dt. 26.03.2012 (3) 8663654, dt.16.04.2012 and (4) 8782191, dt. 03.05.2012. Even after receiving the 5 complaints also the Opposite Party is not giving any response either to replace the same with a new one or else to refund the said amount. Because of the non functioning of the Washing Machine complainant family is suffering a lot and his family members are forced to wash their clothes by hand with the help of Dhobi. Because of the defect in the Washing, the very purpose for investing the amount for purchasing the Washing Machine but wash the clothes is not solved. Finally when the complainant on 18.06.2012 approached the Opposite Party and the Opposite Party stated that complainant may take a new IFB company washing machine (Senorita DX Model Front load) for Rs.23,190/-. For that the complainant can pay the balance amount of Rs.17,855/- after deducting Rs.10,700/- and by returning the defective washing machine to the Opposite Party. For the said offer the complainant was not interested when the complainant requested the Opposite Parties for replacing of the new Washing Machine in place of defective one or to repay the amount with interest. The Opposite Parties denied and thereby alleging deficiency of service of the Opposite Parties, the present complaint is filed by the complainant seeking reliefs as sought for.

3. Notices were served to the Opposite 1 & 2. The 1^st Opposite Party not filed counter. The 2^nd Opposite Party filed counter and stated as follows.

4. The complainant lodged the present complaint with an only grievance that the clothes are not washed properly. The Washing Machine of every model will have its speciality and quality, depending upon its price and model. There is a defect found in the type of usage of the washing machine by the complainant. When the technicians observed the machine and instructed to the complainant not to mix white clothes along with other clothes for better wash quality, but the complainant has been expecting whiteness like new clothes, which no washing machine will ensure. On perusal of the 5 complaints given by the complainant, he has not even mentioned in any complaint that about the functioning of the machine. Even also there is a gap between each complaint not less than 6 calender months. So there will be no fault on part of the Opposite Parties in supplying the Washing Machine to the Complainant. The Complainant filed the false allegations that the Service Engineer Mr. Ramesh has stated that the machine was in helpless situation. Without utilizing the machine in proper manner, the complainant is alleging false allegations that the machine is not functioning well. The Opposite Party has never given offer to the complainant to exchange his defective washing machine with a new Senorita DX Model Front load worth of Rs.23,100/-. In the initial stage itself the complainant has been given the full-fledged demo with regarding to the washing machine and has explained about the usage of the washing machine along with warranty clauses of the machine. The Complainant with an intention to grab a new machine filed the present complaint with false allegations against the Opposite Party. The Opposite Party never promised to the complainant that the Washing Machine can be replaced with defective one. The Complainant has wrongly stated that the Opposite Party has promised to replace the new washing machine for that he has to prove the same. As there is no default or any deficiency of service on part of Opposite Parties the complaint is liable to be dismissed.

5. The 1^st Opposite Party has filed adoption memo treating the counter filed by Opposite Party No.2.

6. On perusing the entire pleadings of both along with documents furnished by the Complainant, the Forum has framed the following points for consideration: a) Whether there is any deficiency of service on the part of Opposite Parties; b) To what relief.

7. The complainant filed his Evidence Affidavit and on his behalf Ex.A1 to A8 were marked. The Opposite Party filed Evidence Affidavit but not filed any documents in support of their defense. The complainant filed Written arguments along with oral arguments

8. At the time of arguments on behalf of the complainant 4 case laws in support of his claim (1) FA-08/363, Sri Sohan Singh Vs Electrolux Kelvinator Ltd. and another, wherein the matter was related to the defective in the machine which was replaced 5 times and then refund of amount is directed. (2) FA A/10/182, Indira Krishnan Vs Electrolux Kelvinator Ltd. and another, wherein the said matter was related to the defect in the washing machine and direction was given to the respondent to refund the amount along with interest @ 12% p.a. from date of order of the Forum plus compensation and costs of the litigation (3) R.P.No.2337 of 2005 New Hydraulics Vs Smt.Leena Sanjay Maloo, which was related to the purchase of the loading machine and as there are some defect in the loading machine, the Hon’ble National Commission observed that only remedy available to the appellant to return the amount of Rs.2,50,000/- to the respondent. (4) F.A.No.372/2004 (NC), Wipro Ltd Vs. Toppers Multimedia (P) Ltd and 2 others, wherein the said matter related to the purchase of a Computer hardware and there were several breakdowns and defects. Because of the break-downs, the complainant was sustained severe loss and damages to this reputation and then Hon’ble National Commission has directed the appellant to refund the cost of the Computer hardware along with interest @ 12% p.a. which is confirmed by the National Commission and no compensation and costs were granted.

9. The Opposite Parties filed their Written arguments and also their oral arguments.

10. Point No.1: The present complaint is filed by the Complainant for refund of the value of the Washing Machine purchased from the 1^st Opposite Party which was manufactured by 2^nd Opposite Party, as there was some defect, the performance of the Washing Machine is very poor and the Washing Machine was washing the clothes of the complainant with poor quality. The Opposite Parties in their counter stated that the complainant is making false allegations and the complainant has not utilized the machine properly and he has expecting more white clothes as if the new white clothes and further no machine will ensure. Thereby as there is no deficiency on part of the machine and also on the part of the Opposite Parties. As the complainant has not confronted that there is a fault in the machine though the Service Engineer Mr.Ramesh has given a certificate to that extent.

11. Exhibit A1 is the Invoice dt. 18.5.2011 for purchase of IFB Washing Machine Model No.AW60-8061 for Rs.10,700/-. Ex.A2 is the Booklet cum Warranty Card for the Washing Machine.  Ex.A3 is the Legal Notice given by the complainant to the Opposite Parties 1 & 2 for replacement of the Washing Machine value i.e. Rs.10,700/- along with interest, compensation and costs. Two Postal receipts and acknowledgement card related to the Ex.A3, Legal Notice were marked as Ex.A4 & A5. Ex.A6 is the reply given by the 1^st Opposite Party for the Ex.A3, Legal Notice stating that the intimation with regarding to the defect in the Washing Machine will be informed to 2^nd Opposite Party. Ex.A7 is the request of the complainant vide Email to the Opposite Parties 1 & 2 Customer Service either to replace the machine or suggest the best practice to improve the wash quality. Ex.A8 is the Job card given for the Ex.A1 Washing Machine dt. 27.03.2012 in which it was mentioned as the quality of the machine is poor in nature and the Service Engineer is helpless.

12. Observing Ex.A8 it seems the said certificate was given by one Mr.Ramesh related to the Opposite Parties 1 & 2 Service Centre. In the counter Opposite Parties 1 & 2 stated that, though the complainant is relying upon the version of the Service Engineer Mr.Ramesh, with regarding to the Washing Machine Complainant cannot rely upon the Ex.A8. At the same time when the opportunity is there for the Opposite Parties 1 & 2, they can even file the Evidence Affidavitof the Service Engineer Mr.Ramesh as DW-2 to rebut the version of the Complainant. Inspite of that even after availing the opportunity also the Opposite Party has not file the DW-2 Mr.Ramesh evidence. So observing the Ex.A8 report and the contention of the 2^nd Opposite Party in para No.2 of the Counter we are of opinion that the Ex.A8 is a crucial document which reveals that there is some defect in the Washing Machine.

13. Even observing the para No.3 of the Counter the Opposite Parties are stating, “even observing the 5 complaints made by the Complainant in the gap of 6 months each, the complainant never explained about its non-functioning of the machine, but he is alleging only the Opposite Parties with regarding to the replacement of the machine”. When the Opposite Parties are admitting the complaints and denying the version in the complaint given by the Complainant it is the duty of the Opposite Parties to furnish the documents to prove that there is no fault on part of them in providing the Washing Machine to the Complainant. So unless the documents i.e. 5 complaints were filed by the Opposite Party, the Opposite Parties cannot blame the complainant. Even when the opportunity was given for the Opposite Parties 1 & 2, no documents were filed on their behalf to prove their contentions. As seen from the Ex.A2, Warranty Card and Ex.A8 Job Sheet/Report given by Mr.Ramesh dt. 27.3.2012 it reveals that the washing Machine’s warranty period is for 2 years which is valid from 25.05.2011 to 24.05.2013. The Opposite Parties are also admitting the same that the Washing Machine has 2 years warranty.

14. Observing the para No.4 of the Ex.A3 Legal Notice served to the Opposite Parties 1 & 2 it seems after purchase of the Washing Machine on 18.02.2011 i.e. after 4 months 10 days the problem with the Washing Machine started on 27.09.2011. As seen from the Ex.A6 i.e. Reply Notice given to the Complainant after receiving Ex.A3 Notice, the 1^st Opposite Party assured the Complainant to intimate about the problem to the 2^nd Opposite Party.

15. Observing the Ex.A7 request of the complainant vide Email dt 15.04.2012 and the Ex.A6 Reply given by the 1^st Opposite Party along with Ex.A8 Service Report given by Mr.Ramesh we are of opinion that even after receiving the 5 complaints from the side of the complainant with regarding to the defect in the Washing Machine and even after assuring the same for proper service, the Opposite Parties kept quiet and thereby there is deficiency of service on part of the Opposite Parties in not responding to the complaints given by the Complainant. Thereby the complainant has suffered with some inconvenience with the defective Washing Machine and complainant has forced to wash the clothes and also to wash the clothes through the Dhobi. Accordingly point No.1 is answered.

16. Point No.2: As confronted by the Point No.1 that there is deficiency of service on part of Opposite Parties observing the Ex.A6, A7 & A8 (Service report of Mr.Ramesh) it seems the Complainant has suffered a lot with regarding to the defective Washing Machine as the Opposite Party has not responded for the complaints of the complainant. Observing the 4 case laws filed by the complainant in para No.8 supra, all the case laws reveals that, in place of Replacement the only remedy is refund of amount to the Consumer.

17. As per case law I (2014) CPJ 51 Goa between ACCEL Frontline Ltd. Vs. A.G.Kondepaka, wherein the matter was related to the defective mobile phone as the mobile phone service is not well and gave troubles for so many times and even after rectifying the problems when the Mobile phone is not worked properly, the Hon’ble Goa State Commission has held that as the complainant has utilized the mobile phone for 7 months and thereafter the problem was started with the mobile phone. The only eligibility for the complainant is refund of 2/3^rd price of the Mobile set.

18. Here observing the principle of the Case Law I (2014) CPJ 51 Goa

19. With regarding to compensation and costs: As seen from the entire record and contentions of the both sides along with Ex.A8 (Report), we are of opinion that because of the defect in the Washing Machine, the complainant’s might have washed their clothes by themselves or with the Dhobi so for that mental agony the complainant’s areentitled for the compensation of Rs.5,000/- to be paid by the Opposite Parties 1 & 2 jointly and severally. The complainant is also entitled for legal expenditure for Rs.3,000/- to be paid by the Opposite Parties 1 & 2 jointly and severally. Accordingly point No.2 is answered.

20. In the result the complaint is allowed in part. The Opposite Parties are directed to refund the amount of Rs.8,768/- (Rupees Eight thousand seven hundred and sixty eight) along with interest @ 12% p.a. from 27.09.2011 till realization to the complainant by taking the defective washing machine from the house of the complainant. After receiving the defective washing machine the Opposite Parties has to take acknowledgement from the complainant. The Opposite Parties 1 & 2 are jointly and severally liable to pay Rs.5,000/- (Rupees Five thousand) compensation to the complainant for causing mental agony and also liable to pay costs of Rs.3,000/- (Rupees Three thousand) towards costs for legal expenditure. Time for compliance is 30 days from the date of receipt of this Order.

    Dictated to the Stenographer, transcribed by him, corrected by me and pronounced  by us in the open Forum on this the 18^th day of March, 2015.

                                

             Sd/-                                                                                         Sd/-

    President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                                  Visakhapatnam

     

    APPENDIX OF EVIDENCE

     

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

-NIL-

        Sd/-                                                                  Sd/-

President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                              Visakhapatnam