By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Complaint in short is as follows:-
Complainant is a senior citizen. On 17/06/2017 complainant purchased one
Whirlpool refrigerator worth Rs 34,200/- from opposite party No.1 shop which is manufactured by opposite party No.2. At the time of purchasing the refrigerator the sales man of the opposite party No.1 said that the body of the refrigerator is made up of steel, so there is no chance for rusting. Opposite party No.1 assured 10 years warranty for above refrigerator. But within two years of its use, the refrigerator spreaded with rust.
2. Complainant informed this to opposite party No.1 and they told to the complainant that, if he pays 60% of the cost of the fridge, they will ready to replace the fridge with a new one. The Manager and the sales man of opposite party No.1 assured the complainant at the time of purchasing the refrigerator that , there is no chance for rust in the body of refrigerator because it is made up of steel. In the bill the particulars of the fridge is described as steel. Moreover the above damage of the fridge were caused during the warranty period. Complainant approached opposite party No1 for getting a new fridge instead of the old defective fridge, but opposite parties were not ready to rectify the defects and or changing the old fridge with a new one. There is clear deficiency of service and unfair trade practice on the part of opposite parties. The both doors of the fridge were damaged during the warranty period and opposite parties did not rectify the defects or did not provide a new fridge instead of the damaged defective fridge. Hence this complaint.
3. The prayer of the complainant is that, he is entitled to get a full refund of Rs. 34,500/- the cost of the refrigerator to him, Rs.25,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and
thereby caused mental agony, physical hardships and sufferings to the complainant
and Rs. 50,000/- as compensation and Rs. 10,000/- as cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite party and
notice served on them and opposite party appeared before the Commission through their counsel and filed version on 15/10/2021. On 26/11/2021 complainant filed one IA 474/2021 to implead the manufacturer of the refrigerator, Whirlpool of India Limited as opposite party No.2. IA 474/2021 allowed and impleaded the manufacturer as opposite party No.2. After receiving notice they did not file version and affidavit. Hence opposite party No.2 set exparte.
5. In their version, opposite party No1 denied the entire allegation levelled against them except those which are specifically admitted. They again stated that the above complaint is not maintainable either in law or on facts. Complainant is not having any cause of action against them. They again stated that complainant who himself visited the show room of them and purchased the refrigerator according to his own wish after thoroughly inspecting the product. The complainant himself approached the opposite party and demanded Alfa steel 360 Litre refrigerator manufactured by M/s Whirl Pool since he was so particular for the purchase of the said refrigerator. Complainant was very much aware about its make and performance and that is a reason he demanded the said product from the opposite party. They again stated that complainant has falsely alleged in the complaint that the sales man and the manager of the opposite party No.1 made believe him that the body of the refrigerator is made with steel.
6. Opposite party again stated that, they are not aware about the rust in the body of the refrigerator purchased by the complainant, since no such complaint was made before them by the complainant till the filing of the case. They submitted that complainant never approached them with the complaint of the refrigerator and the averments made in the complaint that opposite party demanded more amount to the extent of 60% of the price to cure the defect is absolutely false. Hence denied. They again stated that complainant has not adduced any reliable evidence to prove that there is any defect in the refrigerator he purchased and not even adduced any cogent evidence to prove that he approached the opposite party with his grievance and they have demanded 60% of the cost to cure the defect. They again stated that they are dealer of the refrigerator and it is already held by the Hon’ble Supreme court as well as the National Commission that in case of manufacturing defects the dealer is not at all liable. In this case allegation of the complainant is with regard to the rust in the body of the refrigerator that too after two years from the date of purchase. If there is any rust in the body, which is proved by the complainant with the support of any cogent and reliable evidence like expert opinion. There is no deficiency of service from their side. Hence the complaint may be dismissed with cost.
7. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A5. Ext.A1 is the original tax invoice given by opposite party No.1 to complainant dated 17/06/2017. Ext.A2 is the original user’s manual and warranty details of the refrigerator. Ext. A3 is the photograph of one fridge, Ext. A4 is another photographs
of the fridge, Ext.A5 is the warranty details affixed at the top of the fridge (Original) .
Opposite party No.1 filed affidavit, but no documents marked from their side.
8. Heard complainant and opposite party No.1 Perused affidavit and documents. The following points arise for consideration:-
Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
If so, reliefs and cost.
9.Point No.1 and 2:-
Case of the complainant is that the refrigerator, he had purchased on 17/06/2017 having body made up of steel became spreaded with rust. But opposite parties reluctant to give a new fridge to complainant or rectify the defect of the refrigerator. But opposite party No.1 stated that, it was the complainant who himself visited the show room and purchased the refrigerator of his choice and he was very much aware about its make and performance and he himself demanded the said product. They again stated that they are only a dealer of refrigerator purchased by complainant and they added that complainant has not adduce any expert evidence to prove that there is any defect in the refrigerator he purchased.
10. Perused affidavits and documents of both parties. Äs per Ext.A1 it is clear that on 17/06/2017, complainant had purchased the above said refrigerator worth Rs. 34,500/- from opposite party No.1 shop which is manufactured by opposite party No.2. From Ext.A2 the User’s manual page No.14 and 15 opposite party No.2 provided 10 (9+1) years warranty to the refrigerator. As per Ext.A3 and A4 photographs submitted by complainant before the Commission, it is seen that lower portion and middle portion of the fridge had spreaded with rust. As per Ext.A5 the sticker in the fridge shows 10 years warranty to the above said fridge.
Opposite party No.1 did not produce any documents to prove their case.
11. As per Ext.A1, in the specification and particulars about the fridge noted that the above said fridge is Alfa steel 360 litre 3 star. That means it clearly shows that the body of the fridge is made up of steel. From Ext.A2 and A5, it is seen that fridge is having 10 years warranty. Complainant also produced two photographs of the fridge which clearly shows the rust in the fridge. But opposite party No.1 said that complainant himself visited the show room and purchased the refrigerator according to his own wish after thoroughly inspecting the product. They again stated that complainant approached them and demanded the Alfa steel 360 litre refrigerator manufactured by opposite party No.2. So complainant was very much aware about its make and performance and that is the reason he demanded the said product from opposite parties. But they denied the allegation of complainant regarding the steel body of the refrigerator. They again said that they have no idea about the rust in the body of the refrigerator purchased by the complainant since no such complaint was made before them by the complainant till the filing of the above case.
12. But from the documents and affidavits of complainant it is clear that, the fridge had rust spreaded in the middle and lower portion of the fridge. We are not at all disbelieve the Ext.A3 and A4 produced by the complainant before the Commission. In Ext.A1 in the specification portion of the refrigerator clearly shows it is Alfa steel. So rust in a steel fridge is manufacturing defect. So it is the duty of opposite party No.1 to inform opposite party No.2 about the complaint filed by complainant before the Commission. Opposite party No.1 just cleaned their hands by stating that they are not aware about the rust spreaded fridge of complainant. They also stated that Complainant did not file any complaint before them. But as per the documents and date of complaint it is seen that complainant filed this complaint on 23/11/2020. As per the direction of opposite party No.1 complainant impleaded the manufacturer of the fridge as opposite party No.2 as per IA 474/2021. But opposite party No.2 did not appear before the Commission to conduct their case. So it is the duty of opposite party No.1 to inform opposite party No.2 about the case filed by complainant before the Commission after receiving the notice from Commission. But they did not take any steps or did not file any proof which shows that they had contacted opposite party No.2 to inform about the case pending before this Commission. There is no contention for opposite party No.1 that now they are not selling the fridge and other items manufactured by opposite party No.2. In their version they just mentioned that the manufacturer of the refrigerator M/s Whirl pool is not made a party to the proceedings and hence the above case is bad for non-joinder of necessary parties. But they did not provide the address and details of the manufacturing company. Complainant filed IA 474/2021 to implead the manufacturer of the above fridge as opposite party No.2 on 26/11/2021.
13. From the above facts it is clear that the opposite party No. 1 the dealer who sold the fridge to complainant did not inform opposite party No.2 about the case of the complainant after receiving the notice sent from this Commission. From their attitude we are on the opinion that they are least bothered about the disputes of a consumer. They are not ready to redress the grievance of complainant. Moreover complainant is a senior citizen an aged person. Complainant has not been submitted an expert opinion about the condition of the fridge before the Commission. But we believe the photographs and contentions of the complainant regarding the fridge submitted by complainant. It is easy for opposite party No.1 to inform opposite party No.2 for rectifying the defect which is a manufacturing defect. The costly fridge damaged within two years of its purchase as per complainant’s case. So it is the duty of opposite parties to rectify the defects of complainant’s fridge during the warranty period. As per documents, we are on the opinion that the fridge is having 10 years warranty. So it is the duty of opposite party No.2 to rectify the defect and it is the duty of opposite party No.1 to inform about the complaints made by complainant before this Commission. In their version and affidavit opposite party No.1 stated that they are not aware about the rust in the body of the refrigerator purchased by the complainant on 17/06/2017. But they are aware the rust and other defects of the refrigerator after 23/11/2020. Now three years are gone, but opposite parties did not take any steps to rectify the defect of the fridge. Both parties are not bothered the grievance of an age old consumer. It is a clear deficiency of service from the side of opposite parties. So both opposite parties are liable to compensate the complainant. Both are jointly and severally to liable to compensate the complainant. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint. Hence we allow this complaint holding that opposite parties are deficient in service.
14. We allow this complaint as follows:-
The opposite parties are directed to refund Rs.34,500/- (Rupees Thirty four thousand and five hundred only) the cost of the refrigerator to the complainant and complainant is directed to returned the refrigerator to opposite parties after payment by opposite parties and opposite parties are directed to take the refrigerator from complainant’s house .
The opposite parties are directed to pay compensation of Rs. 10,000/-(Rupees Ten thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
The opposite parties also directed to pay Rs. 5000/-(Rupees five thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 9th day of March, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A5
Ext.A1 : Original tax invoice given by opposite party No.1 to complainant dated
17/06/2017
Ext.A2 : Original user’s manual and warranty details of the refrigerator.
Ext A3 : Photograph of one fridge.
Ext A4 : Another photographs of the fridge,
Ext A5 : Warranty details affixed at the top of the fridge (Original).
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
