Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has submitted that he purchased one refrigerator of the OP1 from the showroom of OP2 on 30-01-2012 being model No.VAE2431BR vide Cash Memo No.KMMCM0141 dated 30-01-2012 and said refrigerator was delivered on 02-02-2012 by the OP2 at his residential address and at the time of delivery it was sealed but when the complainant opened the sealed pack of the refrigerator she found that there are cut mark on the body of the refrigerator both from the inside and outside on the left hand side and without any further delay she called the helpline number of OP1 regarding delivery of defective refrigerator.  The complaint was lodged and a docket No. being KOL – 060212400 was required.  Thereafter, complainant was assured that necessary steps shall be taken and complainant also approached the OP2 to do the needful but the OP2 did not show any eagerness to help the complainant but OP2 tried to increase only their sale and not to provide any service to the customers after sale.  Despite several complaints made by the complainant no action was taken by the OPs1 and 2.  Thereafter, complainant made a second complaint to Videocon Industries Ltd. on 10-02-2012 and the same was registered by the OP1 as 1002120251 but painful to note that even after that OPs1 and 2 did not repair the damaged refrigerator or replace the said defective refrigerator.  Thereafter, the complainant sent notice requesting the OPs for replacement of the same or to repair the same but that had not already been done and in the circumstances, being harassed by the OPs the present complaint is filed by the complainant for redressal.

            OP1 after receipt of summon appeared on 31-08-2012 and notice upon OP2 was served on 21-07-2012.  Thereafter, OP2 by filing written version submitted that complainant purchased the said refrigerator as per her choice and the same has duly been delivered to the complainant absolutely free of cost and that was received with full satisfaction of the complainant and the crack of the body of the refrigerator which was occurred due to mal-handling or improper use of the sane by the complainant and so answering OPs have no responsibility in any manner whatsoever as after sale about service  it is the concern of manufacturer who has his liability for replacement or repairing of the refrigerator within the purview of the terms and conditions of the warranty only.  Question of supply of cracked goods to the complainant as alleged is completely false and said defect is of manufacturer claimed by the complainant then OP2 has no liability for delivery of cracked goods and such a claim of the complainant cannot be entertained by any manner whatsoever, since warranty or guarantee was given by the concerned manufacturer (OP1) and further it is submitted that customer had to undertake that she or he as a customer they agree with warranty or guarantee offered on goods will be undertaken by the manufacturer only and under no circumstances OP has liability for the defect whatsoever and prayed for dismissal of the case.  But anyhow OP1 had appeared but did not contest the case ultimately.

Decision with Reasons

Fact remains that it is undisputed fact that complainant purchased this refrigerator being model no.KMMCM0141 dated 30-01-2012 from the OP2.  OP2 has admitted that fact but it is the complaint or allegation of the complainant that the delivery was made on 02-02-2012 in sealed pack in sealed condition  and after opening the pack and seal it was found that there are certain defects inside and outside wall of the said refrigerator and that was reported to the manufacturer and also to the OPs but OP2 showed his index aiming at OP1 but OP1 did not attend the grievance of the complainant and now, question is who shall have to provide service to the complainant whether the manufacturer of the article or the present OP2 who sold it.

            As per settled provisions of law there is a relationship of the seller and the purchaser and when OP has sold the article to the complainant OP2 as the seller complainant is consumer.  But there is no such relationship in between the manufacturer and the present complainant because the manufacturer did not sell the article to the complainant so it is the liability to the OP2 to provide all service after sale if any defect is pointed out by the consumer to the seller and it is true that complainant reported that matter to the OP2 the seller of the refrigerator but he discharged his liability stating that warranty card is there so manufacturer shall have to consider the same.  But such a plea of that OP2 as seller of the refrigerator is uncalled for, unwarranted, illegal and it is one kind of adoption of unfair trade practice.  Further it is found that it was the duty of the OP2 in respect of the said refrigerator when there is a complaint and considering that fact we are convinced to hold that the present OP2 sold a defective refrigerator to the complainant and for which the OP2 is found negligent and deficient in rendering service to the complainant even after selling the said refrigerator and such an attitude on the part of the OP2 is no doubt unmerchantable and at the same time unethical as business man.  Considering the above facts and circumstances we are directing the OP2 to receive the said present refrigerator from the house of the complainant and replace new one at once and without any fail because as consumer complainant is entitled to get relief from the OP2.  But against OP1 no punitive order can be passed on the ground OP2 purchased the same from the OP1 and he sold it as a merchant.  So, as per legal ethics invariably principle to principle policy shall be applied and in this context to the complainant OP2 is the principal merchant and he shall have to give all redress and fact remains complainant has been harassed by the OP2 in all respects since 30-01-2011 and it is not a matter of joke that after investing good money complainant failed to enjoy the fridge and its service since the date of delivery 02-02-2012 and considering that fact we are inclined to hold that OP2 is liable to replace the fridge or refund a sum of Rs.16,000/- to the complainant along with compensation.

            Thus the complaint succeeds.

Hence,

Ordered

That the compliant be and the same is allowed on contest in part against the OP2 with a cost of Rs.10,000/-(Rupees Ten thousand only) but same is also allowed without any cost against OP1.

            OPs1 and 2 are jointly shall have to replace a fresh new serviceable and in good and habitable condition fridge of moderate, modern model as per choice of the complainant by removing the disputed fridge from the house of the complainant within one month from the date of this order failing which OP2 shall have to pay a sum of Rs.16,000/-(Rupees Sixteen thousand only) to the complainant.

            Further OP2 shall have to pay a sum of Rs.6,000/-(Rupees six thousand only) as compensation for  harassing the complainant and also causing her mental pain and agony since 02-02-2012 (from the date of delivery of the fridge).

            For adopting such an unfair trade practice by the OP2, OP2 is hereby imposed a punitive damages for sum of Rs.5,000/-(Rupees Five thousand only) and for not giving any service to the complainant as seller of the said refrigerator and said amount shall be deposited to State Consumer Welfare Fund.

            OP2 is directed to comply the order very strictly within one month from the date of this order failing which for disobeyance of the Forum’s order within one month from the date of the said period OPs1 and 2 shall have to pay a penal interest @Rs.200/- (at the rate of Rupees two hundred only) per day till full satisfaction of the decree and if it is collected it shall be deposited to State Consumer Welfare Fund and even after that if it is found that OP2 is deliberately disobeying the Forum’s order in that case penal action u/s.27 of the C.P. Act, shall be taken against them and even shop shall be attaching by sealing as per provision of law.