Haryana

Yamunanagar

CC/1107/2011

M/s Keshav Traders - Complainant(s)

Versus

M/s Jagjeet Cooling Industries - Opp.Party(s)

D.C.Aggarwal

01 Apr 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                    Complaint No. 1107 of 2011.

                                                                                    Date of institution: 25.10.2011

                                                                                    Date of decision: 01.04.2016.

M/s Keshav Traders, near Gadhwali Dharamshala, Jammu Colony, Yamuna Nagar through its proprietor Shri Manoj Kumar.     

                                                                                                                       …Complainant.

                                    Versus

1. M/s Jagjeet Cooling Industries, Tejli Stadium Road, Yamuna Nagar through its Prop./Partner/ Manager. 
2. Elan Professional Appliances Pvt. Ltd. 645/2, Ram Farm, New Delhi through its Managing Director.  

                                                                                                            …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. D.C.Aggarwal, Advocate, counsel for complainant.  

              Sh.Harvinder Aneja, Advocate, counsel for respondent No.1.

              Respondent No. 2 already given up vide order dated 25.03.2016..

 

ORDER

 

1.                     The present complaint has been filed by M/s Keshav Traders through its proprietor  Manoj Kumar under section 12 of the Consumer Protection 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to replace the defective refrigerator ECG-300, with new one or to refund an amount of Rs. 22,500/- being price thereof alongwith interest and further to pay Rs. 1200/- as gas charges received by service centre alongwith compensation  compensation as well as litigation expenses. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased two refrigerators EF 450 and ECG 300 having warranty of 12 months vide invoice No. 1436 dated 11.03.2010 for a sum of Rs. 44500/- from OP No.1 who is authorized dealer of Op No.2 manufacturer. After some days, the refrigerator ECG 300, started creating trouble as it did not function properly. The reels of this refrigerator was also defective. The complainant made complaint to Op No.1 regarding the defects and the Op No.1 directed the complainant to approach the service centre of OP No.2 in this regard. Accordingly, the complainant brought the abovesaid defective refrigerator in Auto rickshaw to the service centre of Op No.2. The mechanic thoroughly checked the refrigerator and after inspection, he filled the gas and reels were also repaired and he charged a sum of Rs. 800/- from the complainant. Besides this, the complainant also incurred hiring charges of Auto rickshaw. After some time again the same problem started and once again the complainant brought the refrigerator in Auto Rickshaw to the service centre of Op No.2 but the mechanic of the OP No.2 refused to remove the defects by saying that refrigerator cannot be repaired and lastly prayed that as the OPs failed to repair the refrigerator, so, the complainant is entitled to get the refund of Rs. 22500/- being price of the refrigerator alongwith interest at the rate of 24% per annum. Hence this complaint.  

3.                     Upon notice, OPs No.1 appeared and filed its written statement but OP No.2 was given up vide order dated 25.3.2015 on the statement of counsel for the complainant recorded separately.  OP No.1 filed its written statement by taking some preliminary objections such as no locus standi, stopped by his own act and conduct, no cause of action, without jurisdiction, as the goods were purchased for commercial use and on merit it has been admitted that the Op No.1 is dealer of Op No.2. It has been further admitted that Op No.1 has given the warranty only for one year as per the direction of OP No.2. However, it has been specifically denied that there was any problem in the refrigerator at the time of its installation. The complainant is running a Kiryana shop in Jammu Colony where refrigerator have been installed by the complainant and in this area there was problem of fluctuation in electricity and low power and lastly prayed that as the complainant has not produced any cogent evidence to prove his case. Hence, the complaint of the complainant is liable to be dismissed.

4.                     To prove the case, counsel for the complainant tendered into evidence short affidavit of complainant Manoj Kumar Proprietor of M/s Keshav Traders as Annexure CW/A and document such as Photo copy of invoice No. 1436 dated 11.3.2010 as Annexure C-1 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for Op No.1 failed to file any evidence despite last opportunity and cost of Rs. 100/-, hence the evidence of the OP No.1 was closed by court order dated 1.4.2016. However, at the time of filing of written statement he filed an affidavit of Jagjeet Singh proprietor of M/s Jagjeet Cooling in support of his reply. 

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     We have perused the copy of invoice dated 11.3.2010 (Annexure C-1) in which it has been clearly mentioned that both the fridge purchased by the complainant were having warranty of one year i.e. 12 months from its date of purchase and the present complaint has been filed on 25.10.2011 i.e. after a gap of about 1 year 7 months. Further more, no documentary evidence has been filed by the complainant to prove that the fridge in question was having any manufacturing defect. Even the complainant has not filed any receipt of Rs. 800/-  charged by the mechanic of the OP No.2. Even the complainant has not made the service centre of Op No.2 as party from which he availed the alleged service as mentioned in his complaint and in the absence of any expert/mechanic report, we are unable to held that there was any manufacturing defect in the fridge in question. Further more, the present complaint has been filed by a firm i.e. M/s Keshav Traders and as per the version of the OP No.1, the complainant firm was using the refrigerator in question for commercial use thus he is not covered in the definition of consumer as enshrined in Consumer Protection Act which reads as under:

Section 2(d):-

                        (i)         buys any goods for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

                        (ii)        [ hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [ but does not include a person who avails of such services for any commercial purpose]

                        [ Explanation- For the purposes of this clause, “ commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self- employment]”            

8.                     In the circumstances noted above, we are of the considered view that there is no deficiency in service on the part of OPs and the complainant does not fall under the definition of Consumer Protection Act. Hence, we have no option except to dismiss the complaint.     

9.                     Resultantly we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. However, complainant is at liberty to file his complaint before the competent court of law having jurisdiction if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583. A copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced :01.04.2016.

 

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

 

 

                                                                        (S.C.SHARMA )

                                                                        MEMBER