BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 23/2000 Filed on 13.01.2000

Dated : 29.11.2008

Complainant:

Ayyappan Nair, Lavanya Bakery and Fresh Juice, Pothencode, Thiruvananthapuram – 695 584.

(By adv. Pirappancode G. Jayadevan Nair)

Opposite parties:

1. M/s Allwyn, (A unit of Voltas Ltd.), Allwyn Bhavan, Sanath Nagar, Hyderabad 500 018.

    

2. M/s Allwyn, (A unit of Voltas Ltd.), 35/1982, M.G. Road, Shema Building, Ernakulam – 682 016.

    

3. M/s Vani Electronics, Pothencode, Trivandrum – 695 584.

    

   (By adv. V. Ramachandran Nair)

4. M/s CRYO GENICS, Refrigeration and Air Conditioning Service, Opp: Head Post Office, Jagathy, Thiruvananthapuram – 14.

Additional opposite party:

5. Electrolux Voltas Limited(EVL), Main Office V & I Centre, 580, Delhi Palam Vihar Road, Bijwasam, New Delhi – 110 061.

(By adv. G.S. Kalkura)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02.11.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.10.2008, the Forum on 29.11.2008 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The brief facts of the complaint are as follows: the complainant is the proprietor of Lavanya Bakery and Fresh Juice, Pothencode, Thiruvananthapuram. On 26.06.1998, he purchased an Allwyn Refrigerator 190 Litres from the 3^rd opposite party, Vani electronics, for the use of the complainant's business in Lavanya Bakery. The 1^st and 2^nd opposite parties are the manufacturers and the 4^th opposite party is the authorized service centre of Allwyn Refrigerator. The 5^th opposite party was impleaded as additional

opposite party as per the version filed by opposite parties 1 and 2. During the first week of June 1999, when the said refrigerator did not function properly due to 'Freezer Leak', the complainant entrusted it with the authorized service centre (4^th opposite party) as per the direction of the 3^rd opposite party. The 4^th opposite party undertook to return the said refrigerator after rectifying the defects within one week.

But it was returned only on 13.07.1999. After that when the refrigerator was put in use it did not function properly and used to produce an abnormal sound. On thorough examination the following defects were detected:- (a) The duplicate compressor was seen fixed(not the original of the company as noted in the warranty card) and (b)The original freezer and door changed with a duplicate item. These defects were brought to the notice of the 3^rd opposite party who did not take any favourable action to rectify the said

defect. The originals of the aforesaid parts of a reputed company like Allwyn were replaced with

substandard duplicate items by the 4^th opposite party after the refrigerator was given for service.

Because of the non-functioning of the said refrigerator the complainant was put to heavy loss and irreparable injuries due to the cheating perpetrated by the 4^th opposite party. In the circumstances all

the opposite parties are jointly and severally liable to redress the grievances of the complainant. On 19.07.1999 a lawyer's notice was sent to the opposite parties calling upon to initiate urgent measures to replace an original Allwyn Refrigerator and to make the payment of Rs. 53000/- towards compensation within 15 days of the receipt of notice. But the 3^rd opposite party only responded to the

notice by raising an untenable objection. After the receipt of the notice by opposite parties, the representatives of the 2^nd opposite party approached the complainant and promised to rectify the

defects. After that nobody turned up and failed to discharge their duty as promised. As per the complainant the loss suffered by the complainant by the deficiency of service of the opposite parties is estimated for an amount of Rs. 53000/-.

The 1^st and 2^nd opposite parties, the manufacturer and service centre of Allwyn Refrigerator filed their

version contending that they have transferred the business of the manufacture and sale of refrigerator and washing machine under the Trade Marks 'Voltas and Allwyn with effect from 01.10.1998 and 01.04.1999 respectively as a going concern to Electrolux Voltas Ltd. Hence they submitted that EVL be made a necessary party to these proceedings and the relief, if any be claimed from EVL.

The 3^rd opposite party Vani Electronics filed their version contending that they are not liable to pay any amount to the complainant in any way. The 3^rd opposite party stated that they are only a dealer of the 1^st opposite party and doing the business on commission basis also. Hence they prayed for exonerated

them from liability.

The 4^th opposite party denied the allegation put forward by the complainant against them. The main contention of the 4^th opposite party is that the complainant purchased the refrigerator to use in his

bakery shop which is for a commercial purpose and the complainant cannot claim any relief from this Forum. They stated that they have not removed the original compressor and door as alleged in the complaint. The complainant already availed the service in the warranty period. The 4^th opposite party

also contending that the complainant himself is responsible for damaging the alleged refrigerator by misusing it by overloading against the direction given in the instructions by using it for non-domestic/commercial purpose. Hence they prayed for the dismissal of the complaint.

The additional 5^th opposite party M/s Electrolux Voltas Ltd. also filed their detailed version. The main

contention raised by them is that the complainant is not a consumer and the complaint relates to an equipment for and utilized for commercial purpose. They further stated that the complainant in order to make illegal gains had utilized the refrigerator which has been manufactured solely for the household/domestic purposes. The complainant who was intending to use the refrigerator for the same should not have purchased the domestic refrigerator but should have purchased the commercial model manufactured by 1^st opposite party viz.Deep Freezor and Bottle Coolers and the purchase of the

different model for different purpose knowingly by the complainant. The complainant himself alone is to be blamed. The complainant had purchased the refrigerator for his personal use and was fully convinced and satisfied as to the quality and efficiency of the product manufactured by the 1^st opposite party at the

time of said purchased by him on his own free will, consent and knowing fully well the utility of the said product. This opposite party on receipt of the complaint and on enquiry with the 4^th opposite party the following facts have been revealed that the complainant had approached the 4^th opposite party alleging non-working of the freezer. The 4^th opposite party on enquiry with the complainant was made known by

the complainant that the complainant had used a sharp knife/instrument for removing the materials/ice placed inside the freezer compartment. At this point of time the 4^th opposite party had refused to accept

the machine as the complainant had violated the express terms and conditions stipulated in the warranty. The complainant at the time of taking delivery of the refrigerator was personally convinced and satisfied of the repairs carried out by the 4^th opposite party and thus had remitted the service charge of the 4^th opposite party. The complainant is therefore estopped by his own act, conduct, waiver and

acquisance. The averment that the refrigerator is not working and it producing abnormal sound is bereft of truth and are emphatically denied. There is no defect nor any deficiency in the service committed by the 4^th opposite party or this opposite party. The allegation that the duplicate compressor was fixed is totally incorrect and is denied. There has been no occasion for the 4^th opposite party to replace or alter

the same. In so far as the allegation that the original freezer and door changed with duplicate items are not fully correct, but however it is true that the freezer compartment had been changed on account of the tampering with the same by the complainant, with a new one manufactured with M/s Videon a reputed company since the complainant had insisted for an early delivery and at the instance of the complainant on being informed that in order to replace the same with the product manufactured by the 1^st opposite party, it would be a time consuming process therefore the 4^th opposite party as the matter of good will,

gesture customer relationship the opposite party had replaced the freezer manufactured by M/s Videon with the knowledge and consent of the complainant. There is no manufacturing defect in the product and all the aforesaid defects have arisen solely on account of the mishandling and tampering of the fridge by the complainant himself. This opposite party had not received any lawyer's notice nor any information as to the alleged complaint till the receipt of the notice from the Forum. The claim for Rs. 53000/- and for replacement of the alleged refrigerator itself reveals the intention of the complaint only to make illegal gains and to harass and vex the opposite parties.

In this case the complainant has filed chief affidavit and produced 5 documents which were marked as Exts. P1 to P5. The report filed by the expert commissioner was marked as Ex t. C1.

Matters to be ascertained:

1. Whether the complainant is a consumer as envisaged in the Consumer Protection Act and whether the complaint is maintainable before the Forum?

2. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

3. Whether the complainant is entitled to get the reliefs and costs?

Point (i):- The complainant in this case has filed chief affidavit. The documents filed by the complainant were marked as Exts. P1 to P5. Ext. P1 is the bill dated 20.06.1998. This document shows that the complainant purchased the refrigerator on 20.06.1998 and the price of the refrigerator is Rs. 10250/-. Ext. P2 is the bill dated 13.07.1999 issued by the 4^th opposite party when the complainant had taken

delivery of the fridge after repairing for Rs. 2250/-. Ext. P3 is the warranty card. It is evident that the refrigerator has 1 year warranty. Ext. P4 is the copy of advocate notice issued by the complainant to the opposite parties dated 14.07.1999 demanding repayment of the price of the refrigerator along with compensation for Rs. 53000/-. Ext. P5 series are the returned acknowledgment cards signed by the opposite parties. In this case as per the application filed by the complainant this forum appointed Mr. A Rajendran, Retd. Engineer, KSEB as the commissioner and he has filed report. The report submitted by the commission is marked as Ext. C1. The main objection put forward by the opposite parties against the complainant is that the complaint is not maintainable because the complainant has purchased the refrigerator for the use in his bakery. He is running the bakery according to the opposite parties which is a commercial purpose. They also contended that the complainant has no pleading and not adduced any evidence to show that, he is running the bakery for livelihood. The argument of the opposite parties are correct since no where in the pleading or any evidence has been produced by the complainant to prove that he is running the business for his livelihood. In this case the defect of the refrigerator occurred after the warranty period. As per Ext. P1 bill, the date of purchase of the refrigerator is seen 20.06.1998. The Ext. P3 warranty card shows that the opposite party assured one year warranty to the refrigerator. The complainant stated that the defect occurred during first week of June 1999. But he did not produce any document to prove it. The complainant has not provided any document to prove that disputed refrigerator has become defective within the warranty period. In this circumstance we have to conclude that the purchase was for commercial purpose, if there is guarantee or warranty, the complainant has to be treated as a consumer in relation to the service under the warranty. But in this case the service has been availed after the expiry of the warranty period. Therefore the contention of the opposite parties that the complainant is not a consumer is sustained. The complaint is dismissed accordingly.

In the light of the above, the other issues require no consideration.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 29^th November 2008.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 23/2000

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Original Bill No. 462 dated 20.06.1998 issued by 3^rd opposite

party.

P2 - Original cash Bill/receipt No. 1746 dated 13.07.1999 issued

by 4^th opposite party.

P3 - Original instruction manual with warranty card supplied by 1^st

opposite party.

P4 - Copy of advocate notice dated 19.07.1999.

P5 - Original acknowledgement card.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

V COURT EXHIBIT

CW1 - A. Rajendran

C1 - Commission Report submitted on 28.06.2003.

PRESIDENT

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