DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 69 of 19-03-2007<br /> Decided on : 09-07-2007<br /> <br /> Tarsem Singh Tangri S/o Sh. Om Parkash, R/o Shaheed Bhagat Singh Colony, Gali No. 5, Rampura Phul, District Bathinda. ...Complainant<br /> Versus<br /> <br /> 1.Manish Electronics, Opp. Arya High School, Rampura Phul, now at Main Bazar, Rampura Phul, District Bathinda, through Proprietor.<br /> 2. ELECTROLUX KELVINATOR LIMITED, Corporate Office: U&I Centre, 580, Delhi Palam Vihar Road, Bijawasan, New Delhi 100 061 through its M.D. ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> <br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member <br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. R.D.Goyal, Advocate.<br /> For the Opposite parties : Sh. Sanjay Goyal, Advocate. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. One Refrigerator make Kelvinator having Chasis No. 1390040, Compressor No. 1235 was purchased by the complainant from opposite party No. 1 on its allurement that it is top most model of opposite party No. 2 which is the manufacturer. One year full warranty on the Refrigerator and four year additional warranty, in respect of compressor in case of any defect, was given. In the month of May, 2006, Refrigerator was not working properly. Its compressor was not providing proper cooling. Refrigerator stopped making ice and protecting eatables due to the defect in its compressor. Opposite party No. 1 was approached with the complaint of defect in its compressor. It sent its mechanic for repairs. It could not be properly repaired and compressor again started creating problem after two days. It has been continuously giving trouble of not providing proper cooling, making ice and protecting eatables. He again visited opposite party No. 1 in the last week of May, 2006 but its concerned person paid no heed. Compressor was well within the period of warranty. Under the compelling circumstances, he got the compressor replaced from Parko Friz Service, Rampura Phul against payment of Rs. 2650/-. Due to the unwarranted behaviour of the opposite parties, he has undergone great mental tension, agony, botheration, harassment and humiliation. There is deficiency in service and unfair trade practice on the part of the opposite parties. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by him seeking direction from this forum to the opposite parties to refund Rs. 2650/-; pay Rs. 20,000/- as compensation for mental tension, botheration, harassment and Rs. 5500/- as cost of the complaint.<br /> 2. Opposite parties filed reply with legal objections that complainant has no cause of action to file the complaint; he has not approached this forum with clean hands and complaint is false and frivolous. On merits, they admit that Refrigerator was purchased by the complainant from opposite party No. 1. Their plea is that it was purchased after he was fully satisfied about its functioning. Warranty was provided by the manufacturer. No defect was reported in the month of May, 2006. Inter-alia their plea is that complainant had approached opposite party No. 1 for the first time on 4.7.06 and defect in the Refrigerator was reported. Complaint was immediately forwarded to Kelvinator Service Centre and complaint No. 787 was duly recorded. It was attended to by the mechanic of Kelvinator Service Centre on the next day i.e. 5.7.06. Refrigerator was set right and was made in order. Thereafter he never approached them about any defect in the Refrigerator. Legal notice through counsel for the complainant was received. Kelvinator Service Centre was again informed. Mechanic had visited the complainant on 21.7.06. It was found that Refrigerator was working properly. Reply of the legal notice was also sent. They deny that complainant has got repaired/replaced the compressor. His version about the replacement of the compressor is falsified from the fact that firm M/s. Parko Friz Service, Rampura Phul was closed more than two years ago. Complainant has procured false bill just for the purpose of presenting the complaint. Even otherwise any unauthorised repair from any mechanic other than the authorised service centre of opposite party No. 2, amounts to violation of terms and conditions of the warranty and debars the person from claiming any amount from them. They deny deficiency in service, unfair trade practice on their part and the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of Warranty Card (Ex. C-2) and photocopy of bill dated 27.6.06.<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. Manish Kumar (Ex R-1), photocopy of Notice dated 17.7.06 (Ex. R-2), photocopy of reply of legal notice (Ex. R-3), photocopy of complaint register (Ex. R-4) and affidavit of Sh. Lakhwinder Singh (Ex. R-5) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the opposite parties.<br /> 6. Some facts are undisputed in this case. They are that complainant had purchased Refrigerator from opposite party No. 1 on 30.4.02. One year full warranty on the Refrigerator was given. Four years additional warranty concerning its compressor was also given.<br /> 7. Learned counsel for the complainant contended that in the month of May, 2006, Refrigerator had stopped working as its compressor was not giving proper cooling and was not making ice. It was not protecting eatables. Opposite party No. 1 was approached and it had sent its mechanic for repairs. Refrigerator was not properly repaired. Two days thereafter, it had started creating problems and has been continuously giving trouble of improper cooling, not making ice and not protecting eatables. Again complainant had contacted opposite party No. 1 in the lst week of May, 2006, but opposite party No. 1 continued putting of the matter on one pretext or the other. It did not get the compressor repaired/replaced. Under compelling circumstances, complainant got the compressor replaced from Parko Friz Service, Rampura Phul against payment of Rs. 2650/- and copy of the bill is Ex. C-3. In these circumstances, there is deficiency in service and unfair trade practice on the part of the opposite parties.<br /> 8. Learned counsel for the opposite parties countered the arguments of the learned counsel for the complainant by submitting that on the basis of the evidence led by the complainant, neither deficiency in service nor unfair trade practice on the part of the opposite parties is established <br /> 9. We have considered the rival contentions.<br /> 10. Onus to prove the allegations in the complaint is upon the complainant. Alleged deficiency in service and unfair trade practice are required to be proved by way of leading cogent and convincing evidence. They cannot be inferred on the basis of assumptions and presumptions. As per pleas of the complainant, opposite party No. 1 was approached twice in the month of May, 2006 with complaints. Question is as to whether complainant has proved his vertion. The reply to our minds is in the negative. Affidavit of the complainant stands amply bracketed with the affidavit of Sh. Manish Kumar, Proprietor of opposite party No. 1 who has stated in so many words that complainant never reported any defect in the compressor in the month of May, 2006 and that he approached him for the first time on 4.7.06. Affidavit Ex. R-1 of Sh. Manish Kumar gets corroboration from the copy of the complaint register which is Ex. R-4 and affidavit Ex. R-5 of Sh. Lakhwinder Singh @ Lucky who is employed as Mechanic at M/s. Electro Aid, Authorized Service Station of Electrolux Kelvinator Limited, SCF 6, Street No. 6, Nai Basti, Near Public Dharamshala, Bathinda. He states that complaint No. 787 pertaining to Refrigerator of the complainant was entrusted to him on 4.7.06 and he had visited Rampura Phul on 5.7.06 to attend it. Refrigerator of the complainant was checked by him. Its thermostat required setting. Accordingly, it was set right and refrigerator was made in order. Again he had attended complaint on 21.7.06 and had found that refrigerator was working properly. From Ex. R-4 it is evident that complaint of the complainant made on 4.7.06 was entered in the register and was marked to Lucky. It appears that complainant has not come to this forum with clean hands. He got legal notice dated 17.7.06 served upon the opposite parties and copy of it is Ex. R-2. Through this notice, opposite parties were called upon to compensate him within 15 days failing which he would seek remedy in accordance with Law. Opposite party No. 1 sent reply of the notice on 31.7.06, copy of which is Ex. R-3, mentioning the version which has been set up in the reply of the complaint. Complainant was required to wait for 15 days from the date of receipt of his notice by the opposite parties for proceeding further. He did not think it fit to do so. On 27.7.06, compressor has been shown to have been replaced from Parko Friz Service on 22.7.06. Opposite parties assert that firm Parto Friz Service is not existing for the last more than two years. This fact has been stated by Sh. Manish Kumar in his affidavit Ex. R-1 as well. Complainant did not deny this fact in clear terms. Had the version of the complainant been genuine, he could wait for 15 days after the receipt of his notice by the opposite parties. From this inference is that there is something else behind the story which has been concealed by the complainant or that the bill copy of which is Ex. C-3 is not a genuine one. One who seeks equity must do equity. Contention of the learned counsel for the opposite parties is that as per terms and conditions of the warranty complainant was required to get the refrigerator repaired from the authorised service station of opposite party No. 2. Complainant alleges that he got the compressor replaced from Parko Friz Service within the period of warranty. Admittedly Parko Friz Service is not the authorised service station of opposite party No. 2. Even if it is taken for arguments sake although we do not subscribe to it that complainant certainly got the work done from Parko Friz Service even then, he cannot claim any amount from the opposite parties as the warranty came to an end after work was got done from other mechanic than that of the mechanic of authorised service centre of the Company. On 21.7.06, refrigerator was found working properly by Sh. Lakhwinder Singh @ Lucky mechanic. In such a situation, the story of the complainant does not appeal to reason.<br /> 11. From an over all assessment of the facts, circumstances and the evidence discussed above, no other conclusion can be arrived than the one that deficiency in service and unfair trade practice on the part of the opposite parties are not established. Accordingly, complaint being meritless same is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties concerned and file be consigned to record room.<br /> Pronounced : <br /> 09-07-2007 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr.Phulinder Preet) (Hira Lal Kumar)<br /> Member Member<br /> <br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> <br />