O R D E R

Sri. P. Satheesh Chandran Nair (President):

                        The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                        2. The case of the complainant is as follows:  The complainant purchased an L.G Refrigerator from the dealership of 2^nd opposite party on 15.10.2010 which is manufactured by the 1^st opposite party.  The price of the said LG Refrigerator was Rs.1,04,000/-.  According to the complainant, the complainant had subscribed for an annual maintenance contract (AMC) named as “LG Happy Living Plan” which was commenced on 15.10.2011 and expired on 14.10.2015.  For the above said AMC the complainant remitted an amount of Rs.17,653/- also.  He again contended that he purchased such an expensive refrigerator in order to obtain water and ice through dispenser.  Even at the time of installation itself this facility was absent in this refrigerator.  Though 4 years are lapsed even then the opposite parties are failed to cure the defect noted above.  He further contended that he is a non-resident Indian and whenever, he came to India he was requesting the opposite parties to cure the above said defects.  When all the attempts to rectify the defects are failed the complainant issued a lawyers notice to the opposite parties.  Even though the opposite parties received the notice they are not even responded to the legal notices.  According to him, all the above stated approach and conduct of the opposite parties are amount to unfair trade practice and deficiency of service defined in C.P. Act 1986.  Hence the complainant filed this complaint before this Forum for directing the opposite parties to rectify the above noted defect and compensation etc. etc. 

                        3. This Forum entertained the complainant and issue notice to the opposite parties.  The opposite parties received the notice and appeared before the Forum.  The 2^nd opposite party in this case filed a version and subsequently 1^st and 3^rd opposite party’s counsel filed a memo to the effect that they are accepted the version filed by 2^nd opposite party on 23.12.2014.

                        4. The version of the opposite parties 1 to 3 are as follows:  According to the opposite parties, the complaint is not maintainable either in law or on facts.  This opposite parties admitted the sale of the refrigerator in question and pleaded that the said refrigerator is a perfect one and having no defect.  It is also admitted that there is an annual maintenance contract with the complainant and the same has opted by the complainant himself.  It is again contended that the opposite parties have never promised the complainant that water and ice cube can be obtained through a dispenser.  The opposite parties had never sent a representative to demonstrate the function of obtaining water and ice cube through the dispenser.  According to him, the complainant has never approach the opposite parties to cure the alleged defect of the refrigerator.  Hence the opposite parties prayed the dismissal of the complaint with cost.

                        5. We peruse the complaint, version and the documents available before us and framed the following issues:

1. Whether the case is maintainable?
2. Whether the opposite parties committed any unfair trade practice and deficiency in service?
3. Regarding the reliefs and costs?

                        6. In order to prove the case of the complainant, the complainant’s power of attorney holder one Renjith. K was examined as PW1 and Exts.A1 to A7 and C1 commission report was marked as C1 as per Order dated 02.03.2016 of this Forum.  Ext.A1 is the power of attorney executed by the complainant.  Ext.A2 is the Retail Invoice bill dated 15.10.2010 issued by the 2^nd opposite party to the complainant.  Ext.A3 is the copy of annual maintenance contract.  Ext.A4, A4(a) and A4(b) are the copy of lawyer’s notice dated 24.09.2014 sent by the complainant to the opposite parties.  Ext.A5 series are the postal receipts.  Ext.A6, A6(a) and A6(b) are the postal acknowledgment cards.  Ext.A7 series are the photographs of the refrigerator. When we examine the proof affidavit filed in lieu of chief examination, it is clear that the proof affidavit is more or less as per the tune of the complaint.  PW1 deposed that he is the power of attorney holder of the complainant and he is personally conversant with the fact of the case.  According to him, the complainant purchased the said refrigerator on 15.10.2010 for an amount of Rs.1,04,000/- and it has having an AMC for a period of 15.10.2011 to 14.10.2015. For the above said AMC the complainant spent an amount of Rs.17,653/- also.  It is deposed that the main purpose of the complainant to purchase this refrigerator was for obtaining water and ice through a dispenser.  Though this facility was promised, this facility was absent in this refrigerator, the complainant demanded the opposite parties to rectify the defect through different means the opposite parties were reluctant to rectify the defects.  At the time of trial, the complainant filed a petition to direct the opposite parties to produce the service manual or a copy of the manual Model X10 LG 721 Ltr. DIOS as I.A.No.80/15 and the said I.A was also allowed by this Forum.  It is to see that the opposite parties did not comply the Order in I.A.80/15.  On the other hand, though the opposite parties filed version they did not adduce any evidence on their side.  At the time of examining PW1, opposite parties 1 to 3 cross-examined PW1.  After the closure of evidence, we heard both sides. 

                        7. Point No.1:-  As we stated earlier, the opposite parties in this case raised a serious contention to the effect that the case is not maintainable either in law or on facts before this Forum.  In order to answer this issue we have to examine the complaint, version and the evidence adduced by both side in this case.  It is clear that the complainant purchased a refrigerator as stated above from 2^nd opposite party and the said refrigerator was manufactured by 1^st opposite party and it is also come out in evidence that there is an annual maintenance contract between the complainant and opposite parties.  Considering these material facts we can safely arrive in a conclusion that the complainant is a consumer of the opposite parties and the case is maintainable before this Forum.  Hence Point No.1 found accordingly.

                        8. Point Nos.2 & 3:-  When we examine the evidence adduced by PW1 in this case, it is to see that the original complainant purchased this high cost LG Refrigerator for an amount of Rs.1,04,000/- for the main purpose of obtaining water and ice through a dispenser.  Ext.A1 is the power of attorney executed by the complainant in favour of PW1 and the Ext.A2, A3 are shows that he purchased the said refrigerator from 2^nd opposite party and the amount of the LG Refrigerator is also proved.  It is to say that the opposite parties have also no objection with regard to Ext.A2 and A3.  It is to see that the opposite parties strongly opposed the alleged offer of obtaining water and ice through a dispenser in LG Refrigerator.  At the time of the cross-examination of PW1, PW1 stated that, “പുതിയ type fridge ആയിരുന്നു..  Fridge open ആകാതെ തന്നെ മുകളിൽ - glass വച്ച് switch അമർത്തിയാൽ ice cube വീഴുമെന്നും പറഞ്ഞ് വിശ്വസിപ്പിച്ചു.  Co. യുടെ rep വന്നപ്പോഴും ഞാൻ അവിടെയുണ്ടായിരുന്നു.  Dispenser വഴി ice cube ലഭ്യമാകും എന്ന് കടക്കാർ പറഞ്ഞു എന്ന് v caseþ ൻറെ ആവശ്യത്തിന് കളവു പറയുകയാണ് എന്നത് ശരിയല്ല”.  When we examine this portion of PW1’s testimony, it is to see that how the refrigerator is functioning and how the water and ice cube would have to come out.  We do admit that the opposite parties had a clear case to the effect that they have not given a specific assurance of the above said facility in this refrigerator as alleged by the complainant.  But the opposite parties miserably failed to produce the owner’s manual and comply the order in I.A.No.80/15 of this Forum.  The inference of non-complying of the said order is in favour of the complainant.  In the light of the attitude and approach of the opposite parties we can safely come to a conclusion in favour of the complainant with regard to the offer of obtaining water and ice through dispenser.  The next question to be considered is whether the complainant approached the opposite parties for rectifying the above said mistake.  In order to substantiate this fact the complainant sent a legal notice as per Ext.A4, A4(a), A4(b) to the opposite parties.  The Ext.A5 series in this case is the postal receipts of the above stated legal notices.  Ext.A6, A6(a) and A6(b) are the acknowledgment cards of the above said legal notices.  Ext.A7 series are the photos of the refrigerator.  Ext.C1 and C1(a) are the commission report and mahazar of the commissioner with regard to the refrigerator.  When we peruse Ext.C1(a), it is to see that the refrigerator is kept in complainant’s house and there is a touch screen for this refrigerator and a space for keeping a glass tumbler at the bottom of the said screen.  The Commissioner categorically stated in her report that, “ടി touch screenþ ൽ express freezer, dispenser, freezer, refining, light filter എന്നിങ്ങനെ option- കളും കാണാം.  എന്നാൽ ടി option കളിൽ press ചെയ്യുമ്പോള്  ടി  ഭാഗത്ത്v processing നടക്കുന്ന ശബ്ദം കേള്ക്കുന്നതല്ലാതെ ice cubes വരുന്നില്ല. ആയതിൽ നിന്നും fridge തുറക്കാതെ ice cubes dispenser button press ചെയ്തിട്ടും ice cubes വരുന്നില്ല എന്ന് മനസ്സിലാക്കാം”. According to the statement of the commissioner, it is clear that the complainant is proved his case against the opposite parties with regard to the above stated defects.  The learned counsel appearing for the opposite parties argued that the commissioner is not at all an expert commissioner and the opinion given through Ext.C1 and C1(a) cannot be accepted.  But at the time of allowing the commission application, the opposite parties did not raise any contention as stated above hence this objection cannot be sustainable.  We have to rely the cogent and conclusive opinion of the commissioner with regard to the defect of the refrigerator.  It is also come out in evidence that even though the complainant directly approached the opposite parties several times and even after sending the above said legal notices, the opposite parties evaded from redressing the genuine grievances of the complainant and at the same time when we peruse the version of the opposite parties it is to see that the complainant never complaint the alleged defect to the opposite parties.  As a responsible manufacturer or dealer of such a costly goods it is the paramount duty of the manufacturer or dealer to attend the genuine grievances of the complainant.  When we assess the whole evidence of this case the opposite parties are purposefully neglecting the genuine grievances and not even ready to accept the actual fact involved in this case.  In the light of the evidence already discussed above, we can safely arrived to a conclusion to the effect that opposite party 1 and 2 has committed deficiency in service and unfair trade practice with regard to this case.  Hence we find that the complainant is successfully proved his case and the credibility of the complaint is not rebutted by the opposite parties in this case.  We also finds that the opposite parties are equally and severally liable to the complainant.  Considering the compensation requested by the complainant we have to examine the grievances actually suffered by the complainant in this case. It is evident to see that from the date of installation of the refrigerator onwards the offered facilities were absent in the refrigerator and it is also pertinent to see that the complainant informed the defect to the concerned at the same time but it had not been redressed.  Here also, we can find that the complainant is eligible for a reasonable compensation from the opposite parties.  Hence Point Nos.2 and 3 are found in favour of the complainant.

                        9. In the result, we pass the following orders:

1. The opposite parties are directed to cure the material defect of the refrigerator by providing water and ice cube through the dispenser within one month of the receipt of this order, if the opposite parties fails to rectify the above defects, opposite parties are directed to return the price of the refrigerator i.e. Rs.1,04,000/- (Rupees One Lakh Four Thousand only) with interest of 10% from 15.10.2010 onwards.
2. Opposite parties are also directed to pay a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainant with 10% interest from the date of order of this case onwards.
3.  The complainant is also allowed to realise a cost of rs.3,000/- (Rupees Three Thousand only) from the opposite parties 1 to 3 with 10% interest from the date of order of this case.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^th day of April, 2016.

                                                                                                         (Sd/-)

                                                                                     P. Satheesh Chandran Nair,

                                                                                                                   (President)

Smt. K.P. Padmasree (Member – I)           :     (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Renjith. K 

Exhibits marked on the side of the complainant:

A1 :  Power of attorney executed by the complainant. 

A2 : Retail Invoice bill dated 15.10.2010 for Rs.1,04,000/- issued by the

        2^nd opposite party to the complainant. 

A3 :  Copy of annual maintenance contract. 

A4, A4(a) and A4(b) :  Copy of lawyer’s notice dated 24.09.2014 sent by the

                                    complainant to the opposite parties. 

A5 series :  Postal receipts. 

A6, A6(a) and A6(b) :  Postal acknowledgment cards. 

A7 series :  Photographs of the refrigerator.

Witness examined on the side of the opposite parties  :  Nil

Exhibits marked on the side of the opposite parties:  Nil.

Court Witness:  Nil.

Court Exhibits:

C1  :  Commission Report

C1(a)  :  Mahazer

                                                                                                                   (By Order)

Copy to:- (1) Prabhakaran. P.K., Puthenpurackal House, Naranammoozhi,

                     Pathanamthitta Dist.

2. Authorised Officer, L.G. Electronics India Pvt. Ltd., A Wing, III Floor,

          3-D, District Centre, Saket, New Delhi – 110 017,

3. The Authorised Officer, Mini Super Shoppe,

                     Pazhavangadi. P.O., Ranni – 689 673.

4.  The Branch Manager, L.G. Electronics India Pvt. Ltd.,

                     34/565 B, First Floor, Fortune Arcade, NH Byepass, Service Road,

                    Padivattom, Edappally, Kochi – 682 024.

5. The Stock File.