IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 30^thDAY OF APRIL2021

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

                    Smt.S.Sandhya   Rani. Bsc, LLB ,Member

                     Sri.Stanly Harold, B.A.LLB, Member

CC.No.141/2016

SudheerBabu @ SundarBabu,

SundarSadanam,

Perumpuzha, Kollam                                                            :           Complainant

(By Adv.RajeshRajan)

V/S

1. Whirlpool India Ltd.,

Corporate Office, Plot No.40,

Sector 44, Gurgoan 122002.

Rep.by Managing Director.:Opposite parties

  (By Adv.K.S.Arundas)

2. The Proprietor,

Acer Bajaj Distributors,

Kundara 691 501.

(By Adv.Jose Abraham)

                                                                     ORDER

Smt.Sandhya Rani, B.SC, LLB, Member

This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows.

          On 06.09.2014 the complainant has purchased a fully automatic washing machine of Whirlpool Company with Model name ‘Splash’ from the 2^nd opposite party Proprietor, Acer Bajaj Distributors, Kundara for Rs.13,000/- where 1^st opposite party is the manufacturer of the machine.  One week after its purchase display of the machine became complaint and that was got rectified by a technician send by 2^nd respondent.  After one month there arose leaker of water from the machine when this was informed the 2^nd opposite party got replaced the motor within 15 days of registration of complaint.  Again the drier of the washing machine was get damaged and that was also rectified by the opposite parties.  Thereafter the suspension of the washing machine became complaint and hence the washing machine wastaken to the service centre of 2^nd opposite party and it was got repaired only after two months.  Though the suspension problem of the machine was rectified, it could not load clothes more than 3 Kg and that there arose harsh sound from the washing machine while it works.  Annoyed by all these complaints the complainant contacted with South Zone Office at Kochi of 1^st opposite party in the month of October  2015 then the executives of the 1^st opposite party informed the complainant on 11.02.2015 that the defective machine would be replaced with a new washing machine allotted to him from the Cochin office.  But even after 2 months there was no response from either of the opposite parties.  When the complainant informed the matter to the 2^nd opposite party they replied the complainant that the model ‘Splash’ has stopped production.  So the complainant has to choose another model so the complainant choose Astro model and informed the same to both the opposite parties.  Though the complainant had waited for 2 months there was no response from the side of opposite parties.  The complainant’s family consists of 5 members including 2 school going children.  Due to the malfunctioning of the washing machine the complainant’s family had to spend more than Rs.1, 000/- per month for laundry alone.  The 2^nd opposite party is least interested in replaying the complainant’s queries.  Moreover on 07.02.2016 the employees of 2^nd opposite party abused the complainant when he enquired of the matter with them.  The above said acts experienced on the part of the opposite parties amounts to deficiency in service and unfair trade practice and the same has resulted in severe mental physical and economic hardships to the complainant. Though the damages suffered by the complainant is countless for the sake of settlement he demands Rs.12,000/- for laundry expenses and Rs.50,000/- as compensate for damages along with price of washing machine Rs.13,000/- together with 8 % interest from 06.09.2014.  The complainant had sent a legal notice to the opposite parties on 17.02.2016 by stating all the above matters but they never cared to send a reply though they have received the same.  Hence the complaint.

          According to the 1^st opposite party the complaint is not maintainable either in law or on facts that the complainant has no cause of action to prefer such a case against the 1^st opposite party and which has been filed with intend to harass the opposite party without any cause, grievance or jurisdiction.  Hence the complaint is to be dismissed in limine.  The 1^st opposite party contend that the complainant has purchased washing machine from 2^nd opposite party by satisfying its functions and the sale price.  But when the 1^st have received a complaint with regard to the said washing machine, they have sent their authorized service engineer there and he has noticed that certain part of the washing machine was defective and the same where replaced bynew parts.  Even though the above mention defect of the washing machine was caused due to abnormal usage of the washing machine the defective parts were replaced by them with the help of authorized service engineer of the company as per the warranty terms and conditions issued by Whirlpool India Ltd.  In view of the citation of  Bharathi Knitting Co Vs DHL Worldwide Express Courier Division of Airfreight Ltd. Reported in 1996 KHC 868  it is clear that the warranty terms of the Whirlpool Company Ltd. is limited to either repairing or replacement of parts only.  Again contended that while purchasing the washing machine the complainant unequivocally accepted the warranty terms as provided by the manufacturer so he is bound by the terms of warranty.  Here the 1^st opposite party has even cured the defects even after the warranty period and hence the 1^st opposite party is not liable or responsible for the alleged monetary loss sustained by the complainant.  The 1^st opposite party has a high profile reputation in electronic home appliances business due to the same itself they have replaced the defective parts without any fail.  InSushila Automobiles Pvt.Ltd. vs.Dr.BirendraNarain Prasad & amp; ors.(RP No.2944/2008) it is categorically held that to establish the claim for the total replacement by a new machine the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the machine should suffered from inherent manufacturing defect and opinion of an expert body should also be essential in those circumstances.  But in this case there is no such expert report to establish the case of the complainant that there exists manufacturing defect.  Hence there is no deficiency in service or unfair trade practice on the side of 1^st opposite party and the complainant has no cause of action to prefer this complaint against the 1^stopposite party.  Hence the opposite party prays todismissedthe complaint with costs.

          According to the 2^nd opposite party they are only a retailer of  1^st opposite party hence they are unnecessarily included in the party array.  Whenever the complainant approached the 2^nd opposite party alleging complaints regarding the washing machine they tried to rectify the defects with the help of service engineers of the company and also informed the complainant that the 1^st opposite party had intimated their willingness to replace the washing machine with a new one having same specifications.  But the complainant was not ready to replace the machine but he wanted to get the price of the machine along with other expenses he met with.  Again 2^nd opposite party contends that as a retailer of 1^st opposite party they are not at all responsible for the monetary loss caused to the complainant and also opines that the 1^st opposite party is duty bound to replace the same or refund the amount of the machine and they are unnecessarily included in the party array of this complaint.  Moreover while cross examining the complainant by the counsel for the 2^nd opposite party he deposed that ‘c­mwFXnÀI-£n-bn \n¶pwbmsXmcp ]cn-lm-chpwBh-i-y-anÃ’.  Again he deposed firmly that he wanted reliefs only from the 1^st opposite party.  Hence the 2^nd opposite party is liable to be exonerated from the liability.  The 2^nd opposite party further prays to dismiss the complaint against them.

          In view of the above pleadings the points that arise for consideration are:

1. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties 1 and 2?
2. Whether the complainant is entitled to get replaced the defective machine or to refund the price of washing machine?
3. Whether the complainant is entitled to get compensation from opposite parties?
4. Reliefs and costs?

Evidence on the side of the complainant consists of the oral evidence of PW1 and marked Exts.A1 to A4 series and A5 series.No oral evidence adduced on the side of opposite parties 1 and 2.Complainant and opposite parties have filed notes of argument.Heard both sides.

Point No. 1 to 3

          For avoiding repetition of discussion of materials these 2 points are considered together.    The complainant himself has been examined as PW1 the complainant has  filed proof affidavit by reiterating the averments in the complaint and got marked Ext.A1 is the retail invoice dated 06.09.2014 for Rs.13,000/- issued by Acer Bajaj Distributors (2^nd opposite party).  Ext.A2 is the warranty registration card dated 06.09.2014.  Ext.A3 is the Advocate notice dated 17.02.2016.  Ext.A4 series acknowledgment cards(2 Nos.).  Ext.A5 series postal receipts (2 Nos.).  The  unchallenged averments in the affidavit coupled with Exts.A1 to A4 series and A5 series documents show that the complainant has purchased a fully automatic washing machine of Whirlpool India Ltd.Company (1^st opposite party) on 06.09.2016 with model name ‘Splash’ from 2^nd opposite party proprietor Acer Bajaj Distributors , Kundara for Rs.13,000/-.  But hardly one week after its purchase the washing machine showed complaints one after another that is at firstthe  display of the machine got damaged then there arose leakage of water from the machine again drier of the machine got damaged thereafter suspension of the machine became defective and the machine could not load clothes more than 3 kg and also arose a kind of harsh sound while it works. 

          According to the complainant though the 2^nd opposite party has tried to cure the defects several time by themselves and also with the aid of 1^st opposite party, the defects like reduced loading capacity and harsh sound arising from the machine while it works were continued.   By inspecting the machine with the help of authorized service engineer of the Whirlpool Company 1^st opposite party could realize that there exists manufacturing defect with the machine that is why they have expressed their willingness to replace the washing machine with new one having same price and specification.  So there is no need of adducing more evidence or expert opinion to establish the fact that the machine is having manufacturing defect.  Though the warranty terms limited its obligation either to repair or to replace the parts only herethe 1^st opposite party has offered a new machine by convincing that the washing machine sold to the complainant is having inherent defect and hence it cannot be used by the complainant.  In the circustances there is no need for any expert evidence to prove any manufacturing defect as contended by the opposite party.

          As the authorised Service Engineer deputed by the 1^st opposite party himself has reported grave manufacturing defect the dictum laid down inSushila Automobiles Pvt.Ltd. vs.Dr.BirendraNarain Prasad & amp; ors.(RP No.2944/2008) is not applicable here.  But it is evident that the washing machine purchased by the complainant is defective since one week after its purchase that the defects occurred intermittently within the warranty period and the machine remains not in a working condition.  The service Engineer deputed by the 1^st opposite party had examined the machine and reported that the washing machine is having manufacturing defect.Due to the malfunctioning of the machine and its repair works the complainant and his family had suffered mental physical as well as economic hardships.  So he is entitled to get reasonable compensation for the mental agony sustained on account of non-working of the washing machine. In the circumstances we are of the view that the 1^st opposite party is liable to replace the washing machine with a brand new one of the same type or to return the invoice price of the same and also to pay compensation for mental agony and also for repairing and replacing charges incurred by the complainant.  The complainant is also entitled to get reasonable costs from 1^st opposite party.The points answered accordingly.

Point No.4

          In the result the complaint stands allowed in the following terms.

1. The 1^stopposite party is directed to pay the invoice price of the washing machine   Rs.13,000/- to the complainant with interest  @ 9 % per annum from the date of complaint till realization.
2. The 1^stopposite party is further directed to pay Rs.10,000/- as compensation.
3. The 1^st opposite party is further directed to pay Rs.5,000/- as costs of the proceedings.
4. The 2^nd opposite party is exonerated from liability.
5. The opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the amounts stated under relief 1 and 2 along with interest @ 9% per annum from the date of complaint till realization except for costs from1^st opposite party and their assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  30^th day of  April   2021.

                                                                                    E.M .MUHAMMED IBRAHIM:Sd/-        

                                                                                                      S.SANDHYA   RANI:Sd/-

                                                                                STANLY HAROLD:Sd/-

                                                                                      Forwarded/by Order

                                                                                                                                                                                 Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : G.SudheerBabu

Documents marked for the  complainant

Ext.A1            : retail invoice dated 06.09.2014 for Rs.13,000/- issued by Acer Bajaj Distributors

Ext.A2            : the warranty registration card dated 06.09.2014.

Ext.A3                        : Advocate notice dated 17.02.2016.

Ext.A4                        : acknowledgment cards(2 Nos.).

Ext.A5 series   : postal receipts (2 Nos.).

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil