IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 16th day of December, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C. No. 131/2010 (Filed on 27.09.2010)
Between:
Sri. K.C. Prakash,
Kochuplavilayil,
Thengumkavu P.O.,
Mallassery.
(By Adv. R. Gopikrishnan) …. Complainant.
And:
1. Sri. M.J. Joyse,
J&J Distributors,
Kalanjoor P.O.,
Kalanjoor.
(By Adv. T.S. Radhakrishnan Nair)
2. Sri. Mathew,
Manager,
Gala Ice Cream Company,
Maroor P.O.,
Pathanapuram.
(By Adv. Mathews Madatheth) …. Opposite parties.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he had purchased a freezer from the second opposite party on 17.07.2009 for using it in his shop. From 25.05.2010 onwards milk, curd and soft drinks kept in the freezer destroyed due to rust and corrosion of the freezer. The reason for the said damages to the items kept in the freezer is that the platform of the cooler chamber of the freezer becomes rusty. The matter was intimated to both opposite parties, but they avoided the complainant by saying that they have no responsibility for the same. But at the time of purchasing the said equipment, opposite parties assured that they will replace the equipment in case of any damage and if the complainant doesn’t want the equipment, they will take back the equipment provided the complainant should suffer a little depreciated value from the original price. Though they have given such assurances, they have not either repaired, replaced or took back the equipment. When the guarantee paper was demanded, they told that this equipment is not for sale but it is given for keeping Lazza Ice-Cream prepared by their company. Because of the defect of the equipment and the non-settlement of the complainant’s grievance by the opposite parties, the complainant had sustained financial loss and mental agony and the opposite parties are liable for the same. Hence this complaint for the replacement of the equipment or for getting Rs. 50,000 as compensation from the opposite parties.
3. Opposite parties entered appearance and filed their versions separately.
4. The main contentions of the version of the first opposite party is that the first opposite party is conducting the agency business for the supply of ice-cream and the complainant sold ice-cream supplied by the first opposite party. For preserving the ice-cream, an ice-cream conservator manufactured by Lotemp Company was given to the complainant. The working of freezer in the ice-cream conservator is not as the working of the freezer in a fridge. The freezer was damaged due to the stocking of milk, curd and soft drinks and it is against the directions given to the complainant in this regard. It is also mentioned in the user’s manual given to the complainant. In the circumstance, this complaint is not maintainable. The ice-cream conservator is manufactured only for keeping ice-cream and the complaints of the conservator is due to the keeping of other items. This opposite party never told the complainant that he will replace the equipment incase of any complaints and he will take back it by returning the price as alleged by the complainant. The complainant is not entitled to get any of the relief as prayed for in the complaint as he had used the equipment for one year against the instructions given in the manual. With the above contentions, first opposite party prays for the dismissal of the complaint as he had not committed any deficiency of service or unfair trade practice.
5. The main contentions of the version of the second opposite party is that the complainant has not purchased any goods or he availed any service from the second opposite party and the second opposite party is unnecessarily arrayed in the complaint. The second opposite party is the Manager of Gala Ice Cream Company Private Ltd. and the first opposite party is one of the distributors of the company. The equipment in question is neither a freezer nor a refrigerator and the said equipment cannot be used as a refrigerator or as a deep freezer. It is only an ice cream conservator and can be used only for preserving ice creams. The second opposite party purchased the said ice cream conservators from Lotemp Company and it would be provided to its distributors for preserving ice cream and the distributors will supply it to the dealers under them on demand exclusively to store and preserve the ice creams supplied to them. The ice cream preservators are given with specific direction for storing and preserving ice creams alone and shall not be used for any other purpose.
6. After the purchase of the equipment, the complainant had purchased ice cream products from the first opposite party only on one or two occasions and thereafter he had used the equipment for storing other articles in his shop. As the complainant has used the equipment for storing other articles, against the directions and guidelines given to him, the equipment got damaged and the opposite parties are not liable for the same. The second opposite party has never agreed or assured to take back the equipment as alleged by the complainant. The complainant has no cause of action against the second opposite party and he is not entitled to get any of the reliefs prayed for in the complaint. With the above contentions, second opposite party also prays for the dismissal of the complaint as they have not committed any deficiency in service.
7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral deposition of PW1, DWs.1 and 2 and Exts.A1 and A2. After closure of evidence, both sides were heard.
9. The Point: The complainant’s allegation is that the ice cream conservator purchased by him from the opposite parties became damaged when he used the equipment for keeping ice cream, milk curd and soft drinks. The said complaint was intimated to the opposite parties, but they have not redressed his grievances. The above said act of the opposite parties caused financial loss and mental agony to the complainant and they are liable to the complainant.
10. In order to prove the complainant’s case, the complainant had filed a proof affidavit along with 2 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts. A1 and A2. Ext.A1 is the written cash receipt dated 17.07.2009 for ` 20,000/- issued by the first opposite party for the purchase of the equipment. Ext. A2 is the user’s manual of the equipment.
11. On the other hand, the contentions of the opposite parties is that the equipment is solely intended for preserving ice cream supplied by them and it is not intended for keeping any other items for getting it freezed as the equipment is not designed for freezing. The complainant had used the equipment as against the directions and instructions given in the user’s manual. So the damage of the equipment, if any, is due to the misuse of the equipment and they are not liable for the same.
12. In order to prove the contentions of the opposite parties, opposite parties 1 and 2 filed their proof affidavits and on the basis of the proof affidavits, they were examined as DWs. 1 and 2.
13. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the sale of the equipment. The only dispute between the parties is with regard to the damages of the equipment. According to the complainant, the damages caused to the equipment were due to the inferior quality of the equipment. But according to the opposite parties, the alleged damages of the equipment were due to the misuse of the equipment by the complainant.
14. On a perusal of Ext. A2 user’s manual, the equipment is intended for keeping ice creams only and it is not intended for keeping any other items for freezing. But as per the complaint, proof affidavits and deposition of the complainant, he clearly admitted that he had kept other items such as milk, curd and soft drinks in the equipment. As per Ext. A2 user’s manual, the equipment is intended only for keeping ice creams. So it is found that the complainant has used the equipment against the directions and specifications shown in Ext. A2 and hence it is a misuse of the equipment. So we find that the damages of the equipment is due to the misuse of the equipment by the complainant against the directions in Ext. A2 user’s manual and therefore we cannot find any deficiency of service from the part of the opposite parties. Hence this complaint is not allowable and is liable to be dismissed.
15. In the result, this complaint is dismissed. No costs.
Declared in the Open Forum on this the 16th day of December, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Prakash. K.C.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the cash receipt dated 17.07.2009 for ` 20,000
issued by the first opposite parties to the complainant.
A1 : Photocopy of the User’s Manual.
Witness examined on the side of the opposite parties:
DW1 : Joyis. M.J.
DW2 : Mathews. M. Parakadavil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to: (1) Sri. K.C. Prakash, Kochuplavilayil, Thengumkavu P.O.,
Mallassery.
(2) Sri. M.J. Joyse, J&J Distributors, Kalanjoor P.O., Kalanjoor.
(3) Sri. Mathew, Manager, Gala Ice Cream Company, Maroor P.O.,
Pathanapuram.
(4) Stock file.
