BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 28th day of February 2014
Filed on : 09-07-2012
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.417/2012
Between
Biju Joseph, : Complainant
S/o. Joseph Kalapurayil house, (By Adv. P.P.Stella, Door No.39/4367-J
Kadalikkadu, 2nd Floor, Cherry’s building, Manikkery
Madakkathanam P.O., Road, Valanjambalam, Kochi-16
Ernakulam-686 670.
Vs
1. L.G. Electronics India Pvt Ltd., : Opposite parties
Plot No. 51, (By Adv. Biju Hariharan,M/s. KNB Nair
Surajpur Kasna Road, Associates, 2nd Floor, Morning Star
Greater Noida-201 306 (UP) Buildings, Kacheripady, Ernakulam,
rep. by its Chairman. Cochin-682 018) (for O.P.1&2)
2. Customer Service Department,
LG Electronics India Pvt. Ltd.,
Plot No. 51, Surajpur Kasna road,
Greater Noida-201 306.(UP)
3. M/s. Kuruvithadam Agencies, (3rd O.P. absent)
Thodupuzha,
Thodupuzha P.O.-685 584.
O R D E R
Sheen Jose, Member.
The case of the complainant is as follows:
On 30-06-2011 the complainant purchased a brand new refrigerator from the 3rd opposite party which was manufactured by the 1st opposite
party at a price of Rs. 11,542.73 with one year warranty and four year additional warranty on compressor. The complainant also purchased a stabilizer from the 3rd opposite party for Rs. 887.90. On 11-04-2012 at about 1.30 a.m. the refrigerator got burned due to manufacturing defect causing enormous damage to the complainant’s residential building and other household articles. On 13-04-2012 an authorized technician of the 1st opposite party inspected the complainant’s house and took photographs and estimated the damages. Though the technician assured to replace the refrigerator and the stabilizer and also agreed to make good all the
damages caused to the complainant, however later they went back on their promise. So the complainant caused to issue a lawyer notice to the opposite parties demanding to pay a sum of Rs.1,58,000/- as compensation to which there was no response. Thus the complainant is before us seeking direction against the opposite parties to pay Rs. 1,58,000/- which includes the price of the fridge and the stabilizer with future interest together with costs of the proceedings. This complaint hence.
2.Version of the opposite parties 1 and 2 is as follows:
The averment of the complainant that the refrigerator manufactured by the opposite party caught fire at about 1.30 a.m. on 11-04-2012 is denied. As soon as the incident was reported a technician was appointed to visit the site. The technician after examination has concluded that the fire has not started from the fridge. No promise of compensation has given by the technician. As a gesture of goodwill the opposite parties 1 and 2 offered to provide a new fridge. The allegation of manufacturing defect is not proved by the complainant. There is no deficiency in service on the part of the opposite parties. This complaint is liable to be dismissed.
3. Despite service of notice from this Forum the 3rd opposite party did not respond to the same for their own reasons. The complainant and his
witnesses were examined as PWs 1 & 2. Exbts. A1 to A6 were marked on the side of the complainant. Neither oral nor documentary evidence was adduced by the opposite parties. Heard the learned counsel for the contesting parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is entitled to get Rs. 1,58,000/- with future
interest from the opposite parties?
ii. Whether the opposite parties are liable to pay costs of the
proceedings to the complainant?
5. Point Nos. i & ii. It is not in dispute that the complainant purchased a refrigerator from the 3rd opposite party on 30-06-2011 which was manufactured by the 1st opposite party at a price of Rs. 11,542.73 evident from Ext. A1 retail invoice. According to the complainant on 11-04-2012 at about 1.30 am the refrigerator got burned due to its manufacturing defect causing extensive damages to his residential building and other household articles. The opposite parties 1 & 2 vehemently and vigorously refuted the averments of the complainant and contended that the alleged incident may be caused due to electrical short circuit or from any other sources. The complainant who was examined as PW1 deposed in tune with his contentions. PW2 is an electrician who visited the premises at the instance of PW1. PW2 deposed that he had visited the house of the complainant at about 8.30 a.m. on the date of the unfortunate incident and prepared Ext. A6 report. According to him he found the electrical wiring and earthing of the complainant’s house in tact but for the cord from the fridge to the socket. The opposite parties 1 & 2 disputed the genuineness of Ext. A6 since the complainant has not stated anything about Ext. A6 in Exbt A2
lawyer notice or in the complaint. At this juncture it is to be noted that the opposite parties 1 and 2 in their version stated that on receipt of an intimation regarding the incident the 3rd opposite party deputed a technician to visit and report the matter. However the same does not find a place on record for reasons not stated or explained. The said report is a vital document as far as this complaint is concerned. Moreover the opposite parties 1 and 2 should have taken steps to examine the said technician on oath. The non-production of the said report and the non examination of the said technician is fatal to the case of the opposite parties needless to say which is conspicuous. According to the Hon’ble National Consumer Disputes Redressal Commission, for the failure to produce the best evidence in possession of a party the only inference that can be drawn is that the evidence did not exist and has been subsequently created on an after thought (The proprietor M/s. Vinay Enterprises Vs. A.S. Kandappa Reddy & Anr. RP No. 4611/2008 decided on 13/01/2009.) Withholding of material evidence will lead to adverse inference.
6. The complainant submitted Ext. A4 application under Right to Information Act before the KSEB Authorities with the following questions “ was there any over flow of electric supply under Kalloorkadu Electric Section Covering the area of Kadalikadu transformer during the period from 10-04-2012 to 12-04-2012?. If yes, is there any damage reported due to it?” The KSEB Authorities issued Exbt A5 reply to Ext. A4 which reads as follows:
“ There was no incidents of overflow of electricity and damages reported under Kadalikad Transformer area under this electrical section for the period from 10-04-2012 to 12-04-2012 as per our records”.
7. In view of the above we are of the firm view that nothing is on record to discard the evidence of PW2 and his report which was marked as Ext. A6. Furthermore the opposite parties 1 and 2 in their version stated that they are ready to provide a new fridge as a gesture of goodwill. If they are not at fault they would not have taken such a stand. Accordingly we are only to hold that the incident happened at the premises of the complainant was caused due to the manufacturing defect of the
Refrigerator. The complainant stated that he had to purchase a refrigerator. since the opposite parties turned a deaf ear to his lawful demand at the threshold. According to the Hon’ble National Consumer Disputes Redressal commission a frustrated consumer is entitled to get refund of the price of the gadget (Soni Ericson Vs. Ashish Agarwal (IV)2007 CPJ 294 (NC). In the instant case the complainant is entitled to get refund of the price of the refrigerator from the opposite parties.
8. Admittedly the complainant caused to issue Ext. A2 lawyer notice to the opposite parties highlighting his grievance, but in vain. Had the opposite parties sent a reply expressing their willingness to provide a brand new fridge at the outset probably this complaint could have been avoided. The complainant claimed a total compensation of Rs. 1,58,000/- from the opposite parties which includes the price of the refrigerator. As to award of compensation is concerned, the word compensation appearing under Section 14 of the Consumer Protection Act 1986 includes each and every element of suffering by the complainant, which includes mental agony, physical discomfort, inconvenience, emotional suffering, actual loss,
expected loss and other injustice suffered by the Consumer at the hands of the service provider. In the instant case the situation is not different.
9. In addition to the price of the refrigerator the complainant claimed a total compensation of Rs. 1,44,000/- under various heads. Indisputably the family members of the complainant fled in panic as the fire took hold inside his house that too in the wee hours only due to the unfortunate incident happened as a result of the manufacturing defect of the refrigerator. We may not loss sight of the plight of the complainant and his family members which had happened on the fateful day.
10. The Hon'ble Apex Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, held as under :
“The word 'Compensation' is again of very wide connotation. It has not been defined in the Act. According to the dictionary, it means 'compensating or being compensated' thing given as re-compense. In legal sense it may constitute actual loss or expected loss and may extend to physical mental or even emotional suffering, insult, injury or loss. Therefore when the commission has been rested with the jurisdiction to award value of goods or service and compensation it has to be construed widely
enabling the commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the commission to redress any injustice done to him. The commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also compensate a consumer for injustice suffered by him.”
11.In the light of the above we are of the firm view that the complainant is entitled to get a compensation of Rs. 50,000/- from the opposite parties, which we feel enough to console the grievances of the
complainant. Needless to say the said amount includes costs of the proceedings as well.
12. In the result, we partly allow the complaint and direct as follows:2
i. The opposite parties shall jointly and severally refund
Rs. 11,542.73 to the complainant being the price of the
refrigerator. The opposite parties are at liberty to take back
the remnant of the disputed refrigerator simultaneously at
their cost.
ii. The opposite parties shall jointly and severally pay
Rs. 50,000/- to the complainant towards compensation and
costs of the proceedings for the reasons stated above.
The above order shall be complied with within 30 days from the date of receipt of a copy of this order, failing which, the above amounts would carry 12% interest p.a. till realization.
Pronounced in the open Forum on this the 28th day of February 2014.
Sd/-
Sheen Jose, Member.
Sd/-
A. Rajesh, President.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of bill dt. 30-06-2011
A2 : Copy of lawyer notice dt. 23-04-2012
A3 : Copies of A.D. card
A4 : Copy of letter dt. 02-03-2013
A5 : Copy of letter dt. 17-01-2013
A6 : Copy of letter dt. 13-04-2012
Opposite party’s exhibits : : Nil
