Complaint filed on: 02-01-2012
Disposed on: 18-06-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.05/2012
DATED THIS THE 18th JUNE 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Smt.Vimala Rani,
#78/1, 7th Main Road, 5th Cross,
Mahaganapathi nagar, Rajaji Nagar,
Bangalore - 44
V/s
Opposite parties: -
1. The Manager,
IFB Industrial Ltd,
IFB Vishweshwaraiah Industrial Estate, 16/A, Mahadevapura post, Whitefield,
Bangalore-04
2. The Manager,
Girias Investments Pvt. Ltd,
1035/125, 20th Main Road,
5th Block, W.O.C. Road,
Rajaji Nagar, Bangalore – 10
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs, praying to pass an order, directing the OPs to pay Rs.50,000=00, towards damages.
2. The brief facts of the complaint can be stated as under.
On 13-3-2009, the complainant husband Dr.B.C.Vijay Kumar died suddenly and due to that, the complainant has lost capacity of doing house hold works. So, she purchased the Dishwasher of IFB Company on 12-12-2009 in Girias show-room. But now, the said Dishwasher runs only for half an hour, and then it stops, and it will not wash the utensils totally, and the complainant has filed a complaint, whenever she made a complaint, the workers of OP’s came and made repair, still then the said Dishwasher runs only half an hour and stops, and hot water fall on utensils and it will not wash utensils properly. On 3-11-2011 the complainant filed a complaint and sent a letter on 12-12-2011 to the OP by registered post, now the said dishwasher runs only 10 minutes and then stops. The said dishwasher was purchased by paying Rs.27,000=00, and she has spent Rs.3,500=00 for the maintenance of Dishwasher, and she has purchased the rat mesh and got it fixed in the machine to prevent the problem of rat and as on this day, the said dishwasher is not giving service of 10% atleast the complainant has purchased the dishwasher by availing loan, and she is paying interest on that amount. So, it is prayed to award Rs.50,000=00 towards damages from the OP.
3. After service of notice, the OP no.1 has appeared through his counsel. The OP no.2 did not appear, and he has been placed exparte. The OP no.1 has filed his version contending inter-alia as under:
4. The complaint of the complainant is not maintainable either in law or on facts. The complainant has not approached this forum with clean hands. It is true that the complainant has purchased IFB dishwasher from the 2nd OP. It is false that the Dishwasher stops working after half an hour as alleged by the complainant, and utensils were not washed completely, and the complainant is put to strict proof of the same. It is true that the complainant registered a complaint with the OP no.1 and the OP no.1 sent a technician to the complainant’s house to inspect the dishwasher, and the technician found during inspection that the complainant had not used the dishwasher as per the instructions provided in the user manual. It is false that the complainant approached the OP several times; it is further false to allege that the dishwasher was functioning only for ten minutes now; the complainant is put to strict proof of the same. Such exaggerated statements are made by the complainant with ulterior motives and a malafide intention of making windfall profit at the cost of the Ops. Issuance of the legal notice by the complainant will not create any right in favour of the complainant since the statements and averments made in the legal notice are the self interested statement of the complainant, and there is no defect in the dishwasher even now the OP is ready to repair and give it to the complainant free of cost. There is no cause of action to file this complaint and the cause of action stated is a figment of imagination of the complainant. The very fact that the complainant is seeking a sum of Rs.50,000=00 from the Ops shows the ulterior motive of the complainant. The further allegation of the complainant that she raised a loan and paying interest to purchase the dishwasher is a false statement. The complaint of the complainant is false, frivolous and vexatious and it is liable to dismiss, hence it is prayed to dismiss the complaint with cost.
5. So from the averments of the complaint of the complainant and objection of the OP no.1, the following points arise for our consideration.
1. Whether the complainant proves that, the Dishwasher supplied by the OPs is not working properly, it has become non-use and there is deficiency in service on the part of the Ops?
2. If point no.1 is answered in the affirmative, what relief the complainant is entitled to?
3. What order?
6. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: The complainant is entitled for
Replacement of new machine, failing which, the Ops shall pay Rs.22,990=00 and cost of Rs.2,000=00 to the complainant.
Point no.3: For the following order
REASONS
7. So as to prove the case, the complainant has filed her affidavit by way of evidence, and produced three documents. On the other hand, one Santosh, Senior Service Executive, working in the 1st OP has filed his affidavit by way of evidence and produced no documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties scrupulously.
8. One Smt.Vimala Rani, who being the complainant has filed her affidavit stating that, on 13-3-2009 her husband Dr.B.C.Vijay Kumar died all of a sudden, and on account of un-timely death of her husband, she has lost capacity of doing house hold works. So, she has purchased the Dishwasher of IFB Company in Girias Showroom on 12-12-2009, and that machine runs only for 30 minutes and stops, and it will not wash utensils completely and she has filed the complaint ten times, the mechanics came and made repair and went away, and machine runs half an hour and stops, and hot water falls on utensils and it will not wash properly, finally on 12-11-2011 and 13-11-2011 she filed a complaint, now the machine stops after running for 10 minutes and the amount of Rs.27,000=00 and add was invested and purchased the Dishwasher, they have spent Rs.3,500=00 towards salt, wash power, rat mesh, power controller and stand, and they have got fixed steel rat mesh to the machine to prevent trouble of the rats. The said Dishwasher machine is not working to the extent, atleast 10%, the machine purchased cannot be retained as that of ornaments, and she has raised a loan for purchase of the Dishwasher machine, and she has been paying the interest. So, she prayed to award Rs.50,000=00 towards damages as prayed in the complaint.
9. The complainant has given evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant. The complainant has produced copy of cash credited bill dated 12-12-2009 issued by the OP no.2 in the name of the complainant, and that bill discloses that the complainant purchased the Dishwasher from the OP no.1 for Rs.27,990=00. The document no.2 is the copy of letter dated 11-11-2011 sent by the complainant to OP no.1 and 2 and the manager of IFB industries Limited, East Kolkata stating that she purchased the Dishwasher on 12-12-2009 by paying Rs.27,990=00 from Girias Investment (P) Ltd, at Bangalore, but the said dishwasher is not working properly, inspite of carrying out repair, so she requested to repair the machine properly or replace a new machine, otherwise the matter will be taken to the consumer’s forum.
10. The said evidence of the complainant in relation to purchase of IFB Dishwasher by the complainant after investing Rs.27,990=00 on 12-12-2009, and that machine is not working properly, despite carrying out repair stands corroborated by copy of letter written by the complainant to Ops and cash bill. On the other hand, one Santosh, Sr. Service Executive of OP no.1 has stated in his evidence admitting that the complainant had purchased IFB Dishwasher from the 2nd OP and OP no.1 sent a technician to the complainant’s house to inspect the dishwasher, and the technician found during inspection that the complainant had not used the dishwasher as per the instructions provided in the user manual. It is false to say that, the dishwasher stops working after half an hour and utensils are not washed properly and there is no defect in the dishwasher and even now the Ops are ready to repair and give it to the complainant free of cost.
11. It is worthy to be noted from the material on records that, the OP no.1 has not produced any documentary evidence to show that, the dishwasher of the complainant is working fine, and there is no defect in the dishwasher, and during the inspection by the technician, it is found that the complainant has not used the dishwasher as per the instruction provided in the user’s manual.
12. In the absence of producing any documentary evidence by the 1st OP, it can not be inferred on the solitary testimony of employee of OP no.1 that, there is no defect in the dishwasher and the complainant has not used the machine as per the instruction contained in the user’s manual. The testimony of employee of the 1st OP is not countenanced by any documentary evidence. So the evidence of employee of the 1st OP cannot be believed as gospel truth. On the contrary, the complainant has proved her case by placing the oral and documentary evidence that, the dishwasher purchased by her is not working properly as it does not wash the utensils and inspite of issuances of letter, the Ops have not responded properly. Taking into consideration and the oral and documentary evidence of the complainant and Ops, it is made manifest that, the material evidence of the complainant is more believable trust worthy and acted than the evidence of the 1st OP. The complainant who knocks the doors of this forum seeking relief has proved her case by placing convincing evidence that the dishwasher purchased by her is not working properly and the machine runs only 30 minutes or 10 minutes and then stops and the machine became non use and there is deficiency in service on the part of the Ops, and according we answer this point in a affirmative.
13. It is no doubt true that the complainant has prayed to award Rs.50,000=00 as damages, as the dishwasher is not working properly. It is pertinent note that, the complainant has not satisfied the forum, how she is entitled to claim damages of Rs.50,000=00. The complainant who comes to the forum has to prove the damage of Rs.50,000=00 by placing acceptable material evidence. The evidence placed by the complainant with regard to the sustaining damages of Rs.50,000=00 is lacking in credibility. Under the circumstance, it is not proper on our part to award damages as prayed in the complaint. In view of our affirmative findings on point no.1, we feel it proper to pass an order directing Ops no.1 and 2 to replace the new dishwasher and hand over the same to the complainant within 15 days from the date of receipt of the order. As per copy of cash bill produced by complainant, the value of dishwasher was Rs.27,990=00 and in that amount, an amount of Rs.5,000=00 is deducted towards depreciation and balance amount of Rs.22,990=00 is payable to complainant by Ops no.1 and 2 jointly and severally, in case, they fail to replace the new dishwasher within 15 days. The Ops are further directed to pay Rs.2,000=00 towards cost of the litigation to the complainant, and according, we answer this point. In the result, for the forgoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The Ops no.1 and 2 are directed to replace the new Dishwasher and hand over the same to the complainant within 15 days from the date of receipt of the order. Failing which, the Ops no.1 and 2 are jointly and severally liable to pay an amount of Rs.22,990=00 to the complainant.
The Ops no.1 and 2 are further directed to pay an amount of Rs.2,000=00 to the complainant towards cost of the litigation.
The complainant is directed to hand over the old machine to the Ops at the time of replacement of new machine or after payment of the amount as ordered.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 18th day of June 2012.
MEMBER MEMBER PRESIDENT
