BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.478 of 2015

                                 Date of institution:          16.09.2015

                                                Date of Decision:            27.05.2016

Gaurav Kumar son of Bhagwati Parsad, resident of House No.198, Jarnail Enclave, Phase-1, Zirakpur (Mohali), Punjab.

                                        ……..Complainant

                                        Versus

1.     M/s. Modern Arcade, Patiala Road, Zirakpur (Punjab).

2.     M/s. Whirlpool Magic Care, Branch Office, SCO 365, IInd Floor, Urban Estate, Sector 8, Panchkula.

3.     M/s. Whirlpool of India Ltd., Whirlpool House, Plot No.40, Sector 44, Gurgaon 122002, Haryana.

                                                              ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Ms. Sneh Lata, authorised representative of the complainant.

OP No.1 exparte.

                Ms. Geeta Gulati, counsel for OP No.2 and 3.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

1. Refund him Rs.10,650/- for replacement of the refrigerator alongwith interest @ 18% from the date of replacement till realisation.

2. Refund him Rs.900/- and Rs.1700/- taken from the complainant as repair charges.

(c)    to pay him Rs.25,000/- for harassment, agony, humiliation and wastage of time.

                OP No.1 is an authorised dealer of OP No.3 for sales of its products and OP No.2 is the authorised care/service of OP No.1 and 3.  The complainant purchased from OP No.1 whirlpool Refrigerator vide invoice dated 20.10.2011 and made payment of Rs.23,000/- in cash.  At the time of purchase, OP No.1 informed the complainant that the refrigerator has guarantee/warranty of one + four years from the date of purchase. However, the refrigerator went out of order on 27.05.2015 and the complainant lodged a complaint with OP No.2. The engineer of OP No.2 attended the complaint and changed the relay THK 57 OLP by charging Rs.900/- (i.e. Rs.550/- for relay and Rs.350/- as service charges) vide bill dated 27.05.2015. After three days, on the intervening night of 30/31^st May, 2015 the refrigerator again developed some fault and a foul smell started emanating from it. On 31.05.2015 the complainant again lodged a complaint with OP No.2 and after checking the refrigerator, the engineer of OP No.2 told that the refrigerator needs to be taken to workshop for repairs. The complainant was also asked to pay Rs.1700/- (Gas charges Rs.950/-, driver Rs.250/-, flushing charges Rs.250/- and TPT Rs.250/-) in advance to carry out the repairs. The complainant paid Rs.1700/- vide bill dated 01.06.2015. The refrigerator was taken to the workshop of OP No.2 on 01.06.2015. On 02.06.2015 the complainant received a call from OP No.2 that the refrigerator is not serviceable. The complainant was advised to contact one Harpreet Singh, engineer of the OPs. The complainant made calls on the phone of Harpreet Singh but could not succeed in talking to him. The complainant visited OP No.1 who contacted Harpreet Singh but he did not give any satisfactory reply.  The complainant got served a legal notice on 09.06.2015 on the OPs but did not get any reply to the same. The complainant received a call from OP No.1 to the effect that the refrigerator is not serviceable and if the complainant is interested to receive replacement, then the complainant would have to pay Rs.10,650/-. The complainant asked the OPs that the refrigerator was under guarantee/warranty but OP No.1 refused to repair, replace or refund the amount of refrigerator. Forced under the circumstances, the complainant unwillingly paid Rs.10,650/-to OP No.1 and 2 and thereafter the complainant was given replacement against his refrigerator. Thus, with these allegations the complainant has filed the present complaint.

2.             Shri Gurcharan Singh, Prop. Of OP No.1 appeared on 17.11.2015 and sought time to file reply but thereafter none appeared for it. Hence complaint against OP No.1 was proceeded vide order dated 18.12.2015.

3.             OP No.2 and 3 in the preliminary objections of their written statement have pleaded that the complainant has not approached this Forum with true facts.  The complainant’s old refrigerator has already been replaced by a new refrigerator.  The complainant chose to replace the old model with the higher model. The complainant on his own consent has got the replacement and thus the complainant is not consumer as per Section 2 (d) of the Consumer Protection Act.  The complainant has filed the complaint to take undue advantage of its own wrongs.  On merits, the OPs have pleaded that since the refrigerator had already performed for four year, the internal wires of it developed problem which was non repairable. The problem was due to the fact that there was a tiny leakage of current because of worn out insulation on the internal wiring of the refrigerator which could further be attributed to the voltage. The complainant was informed about non repairable nature of the defect in the refrigerator and he was also informed about replacement policy of the company.  The replacement of the refrigerator can be done free of cost if there is some manufacturing defect in the refrigerator. Since there was no manufacturing defect in the refrigerator, the replacement was done as per company policy, which is 50% of the depreciation amount alongwith transportation charges, but the complainant only paid 25% of the depreciation amount which was allowed and the loss was absorbed by the OPs for maintaining good relations with the customer.   Denying any deficiency in service and unfair trade practice, the OPs have sought dismissal of the complaint.

4.             Evidence of the complainant consists of affidavit of his authorised representative Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.

5.             Evidence of OP No.2 and 3 consists of affidavit of Deepak Chugh, Branch Manager of the OPs Ex.OP-2/1.

6.             We have heard learned counsel for the parties and have gone through the written arguments filed by OP No.2 and 3.

7.             Purchase and sale of the disputed refrigerator in question is admitted vide invoice dated 20.10.2011 Ex.C-1. The refrigerator went out of order on 27.05.2015. On complaint, the engineer of OP No.2 attended the complaint and charged Rs.900/- as he has replaced relay cable for Rs.550/- and Rs.350/- as labour charges vide job bill dated 27.05.2015 at the residence of the complainant.  However, within 3-4 days the refrigerator developed some fault and started emitting foul smell. The matter was reported to OP No.2 and at the instance of OP No.2 the refrigerator in question was taken to the workshop for repairs.  The OP had given estimated detail of charges in advance i.e. Rs.1700/- to carry out the repairs in the workshop. The complainant paid the said amount on 01.06.2015. In the workshop the OP No.2 inspected the refrigerator in question and found it beyond repairable and informed the complainant about it. Instead of effecting repairs, the OP No.2  has offered the complainant to replace the refrigerator after giving 25% depreciated value of the refrigerator in question and payment of additional sum of Rs.10,650/- for the new refrigerator. Since it was a peak summer season, the complainant was not in a position to buy a new refrigerator and having otherwise no option but to accept the offer of OP No.2 and paid Rs.10,650/-. The OPs have given him new refrigerator with fresh guarantee and warranty.

8.             The grievance of the complainant is that the OPs have unnecessarily charged Rs.10,650/- from him as the disputed fridge in question was under warranty and the fault has occurred due to the wrong/defective installation of delay by the engineers of the OP on 27.05.2015. The OPs are not entitled to charge a sum of Rs.10,650/- which they have illegally charged from him.

9.             In the reply OP No.2 and 3 denied any deficiency in service or unfair trade practice and pleaded that there was no manufacturing defect in the refrigerator and the replacement was done as per company policy by giving 25% depreciation of the original price of the fridge in question. Since the complainant has failed to show any manufacturing defect, therefore, replacement of the refrigerator was not done free of cost.

10.           It is admitted fact that the refrigerator in question was purchased on 20.10.2011 and was under warranty as per terms of warranty i.e. one year warranty for the complete refrigerator and four years warranty for the compressor of refrigerator. During the warranty period, neither any defect was noticed/pointed out in the refrigerator nor in the compressor. The first complaint lodged on 27.05.2015 was regarding the refrigerator suddenly went out of order and the relay has been changed by charging Rs.550/- plus Rs.350/- as labour charges. Within 3-4 days thereafter the refrigerator in question has been rendered unserviceable as per the report of OP No.2 itself. The refrigerator in question under warranty or out of warranty does not mean that it has outlived its life. The facts speak themselves as the refrigerator has become unserviceable within 3-4 days of replacement of relay. The installation of relay either being faulty or defective has caused damage to the refrigerator rendering it unserviceable. Undisputedly the refrigerator was under warranty. The OPs, when came to the conclusion that it is unserviceable, were duty bound to replace the refrigerator without charging any additional sum from the complainant. Thus, the OPs have themselves got entrapped into their own web by issuing an offer of replacement by giving the 25% discount of depreciation value of the refrigerator in question and charging Rs.10,650/-. The act of the OPs is thus an act of unfair trade practice which has been proved by the complainant through the admissions of the OP No.2 and 3 itself. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.

11.           The complaint is, therefore, allowed with the following directions to the OPs to:

 (a)   to refund to the complainant Rs.10,650/- (Rs. Ten thousand six hundred fifty only) with interest thereon @ 9% per annum from the date of receipt of payment from  the complainant.

(b)    to pay to the complainant a lump sum compensation of Rs.10,000/- (Rs. Ten thousand only) for mental agony, harassment and costs of litigation.

                Compliance of the above directions be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

May 27, 2016.     

                            (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                 Member