BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 28/06/2010

Date of Order : 31/12/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 362/2010

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The brief facts of the complainant’s case are as follows :

On 12-05-2009, the complainant purchased an Electrolux Refrigerator EDL 244 EG by paying an amount of Rs. 16,661/-. The 3^rd opposite party is the manufacturer and the 2^nd opposite party is the authorized service centre of the same. The aforementioned refrigerator was replaced on 14-05-2009 due to discolourisation. The new refrigerator supplied by them is of the same brand. Soon after delivery, it has developed several complaints. Repeated repairs were carried out by service mechanic in the refrigerator, but the same also was not working properly. The complainant caused to issue a notice to the opposite parties. Thereupon, the opposite parties again replaced the refrigerator of the complainantfor the second time on 14-11-2009. However, the 2^nd opposite party has wrongly shown the date of purchase in the warranty card as ’12-05-09’. Even during warranty period, the refrigerator supplied on 14-11-2009 is giving troubles one after another. The service mechanic failed to attend the machine in spite of several requests. The defect of moisture formation in the trays are recurring. The complainant has registered a complaint with the opposite parties as COC, 26,03,10,0126 on 26-03-2010. The service mechanic has also done so many repairs and rectifications. But the defect is recurring. This is due to its manufacturing defects. The complainant cannot use the refrigerator and the very purpose of a refrigerator is defeated. The complainant find it very difficult to prepare food for children and the family properly. A refrigerator is an essential equipment in the kitchen. Since there is no positive response on the part of the opposite parties, the complainant is left with no other alternative than to approach the Forum. The complainant is before us with the following reliefs against the opposite parties:

1. To direct the opposite parties to refund Rs. 16,661/- being the price of the refrigerator along with 12% interest to the complainant.

2. To direct the opposite parties to pay Rs. 10,000/- to the complainant being compensation and costs of the proceedings.

2. The version of the 2^nd opposite party :

The 2^nd opposite party is only the authorised service centre of the manufacturer of Electrolux Refrigerator. The replacement of the refrigerator by the dealer on 14-05-2009 is not within the knowledge of the 2^nd opposite party. The refrigerator was replaced on 14-11-2009 on noting body rust at Door bottom of the refrigerator. The second opposite party as a good will gesture with the permission of the manufacturer had replaced the refrigerator. Seven complaints between 21-11-2009 to 26-03-2010 having registered by the customer is admitted by the 2^nd opposite party. On each occasion, the 2^nd opposite party had deputed its service technician. The service technician had not found any of the alleged defects in the refrigerator. The complainant has no cause of action against the 2^nd opposite party. The complaint may be dismissed with compensatory costs of the 2^nd opposite party.

3. Despite service of notice from this Forum, 1^st opposite party opted to remain absent. The 1^st opposite party was deleted from the party array as per order in I.A. No. 670/2010 dated 16-11-2010. The 2^nd and 3^rd opposite parties appeared through the counsel. The complainant was examined as PW1 and Exts. A1 to A4 and Ext. C1 were marked on her side. The opposite parties did not adduce any evidence. We have heard the respective counsel.

4. The points that arose for determination are as follows :

1. Whether the complainant is entitled to get refund of the price of the refrigerator from the opposite parties?

2. Compensation and costs, if any?

5. Point Nos. i. and ii. :- Ext. A1 is the bill of the refrigerator. Exts. A2 and A4 are the warranty cards. Ext. A3 is the copy of notice issued by the complainant to the opposite parties.

6. The 2^nd opposite party admitted that as per the permission of the manufacturer, they had replaced the refrigerator of the complainant. Ext. A4 is the warranty card issued by them. According to the complainant, on two occasions the opposite parties replaced the refrigerator of the complainant. The refrigerator in question is the 3^rd one. At the instance of the complainant an expert commissioner was appointed to examine the defects of the machine. His report was marked as Ext. C1. The defects as per Ext. C1 is as follows :

“(b) Defects found and reason

1. Cabin Temp. +2⁰ C

Coment : Normal cabin Temp. 4 to 7⁰ C, few degree

lower than normal.

Reason : The cabin Temp. Control thermostat switch

may not sensing (poor sensing) which create

low temp. in cabin.

2. Large quantities of condensed water vapour is present inside the vegetable tray and also formed a layer of water at the bottom of the tray and vegetables seems become decayed.

Reason : Due to low temp. developed in storage area/cabin, excess evaporation of water particles may occur. This water vapour may accumulated on the top of vegetable tray and condensed and collected at the bottom o the tray.

100. Whether the defects can be rectified by ordinary

     repairs.

The moisture formation and low temp. may be corrected by replace a new cabin thermostat for frost free refrigerators.”

7. The 2^nd opposite party admitted that they had attended to the complaints between 21-11-2009 and 26-03-2010. As per the evidence, we are of the view that the recurring defects of the machine in question before and after the warranty period show that the product suffers from manufacturing defect. Admittedly, this is the 3^rd refrigerator which had been supplied by the opposite parties. We think the order for further replacement of the refrigerator is not at all warranted in view of repeated replacements. The Hon’ble National Commission in Sony Ericsson India Ltd. Vs. Ashish Aggarwal (IV (2007) CPJ 294 (NC) ), held that there is no illegality or lack of jurisdiction on the part of the Fora in ordering refund of the price of the gadget. Eventhough the 1^st opposite party, the manufacturer is liable to refund the price of the refrigerator to the complainant in view of its being taken over by the 3^rd opposite party during the pendency of the proceedings in the Forum and the 1^st opposite party having been deleted from party array, the 3^rd opposite party shall discharge this liability. During the proceeding, the counsel for the complainant endorsed on the complaint that the claim against the 2^nd opposite party is not pressed. So there is no reason to proceed further against the 2^nd opposite party and can be exonerated them from any liability.

8. In the facts and circumstances of the case, we are not ordering any compensation. Nevertheless, the complainant is entitled to get costs of the proceedings.

9. Therefore, we allow the complaint as follows :-

1. The 3^rd opposite party shall refund the price of the refrigerator in dispute to the complainant as per Ext. A1 bill. In that event, the complainant shall hand over the disputed equipment to the 3^rd opposite party simultaneously.

2. The 3^rd opposite party shall pay Rs. 1,500/- as litigation costs to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. from the date of receipt this order till realisation.

Pronounced in open Forum on this the 31^st day of December 2011

Forwarded/By order, Sd/- C.K. Lekhamma, Member.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Senior Superintendent.

A P P E N D I X

Complainant’s Exhibits :-

Opposite party’s Exhibits :: Nil

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