DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 145 of 04.06.2007<br /> Decided on : 24-08-2007 <br /> <br /> Guranditta Singh S/o S. Joginder Singh R/o Village Kot Shamir, Tehsil & District. Bathinda. <br /> ... Complainant<br /> Versus<br /> 1.M/s. Radio Corner, Authorised Distributor of Kelvinator Etc., Post Office Bazar, Bathinda, through its Partner/Proprietor.<br /> 2.Kelvinator Service Centre, Near Public Dharamshala, Gali No. 6, Nai Basti, Bathinda through its Incharge/Manager.<br /> 3.Electrolux Kelvinator Limited, Corporate Office U&I Centre, 580 Delhi Palam Vihar Road, Bijawasan, New Delhi 110 061 through its Managing Director /Chairman/G.M. (Deleted vide order dated 30.7.07)<br /> ... Opposite parties <br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Ashok Gupta, Advocate.<br /> For the Opposite parties : Sh.Sanjay Goyal,Advocate for opposite party No. 1.<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Opposite party No. 1 was approached by the complainant as he was to purchase Refrigerator. Kelvinator Refrigerator is manufactured by opposite party No. 3. Due to the tall claims made about Kelvinator Refrigerator by opposite party No. 1, he purchased one bearing Sl.No. 925024413/24400199 vide invoice No. 4101 dated 8.5.04 for a consideration of Rs. 7,000/-. Warranty for a period of four years was given on the Refrigerator. It was started in the last week of April, 2007. It became totally dead. Opposite party No. 1 was approached by him. He was assured that he would send the mechanic to get it repaired, but to no effect. Thereafter opposite party No. 1 conveyed that its duty was to sell the product and that he should contact opposite party No. 2. Accordingly complainant lodged complaint No. 141 dated 1.5.07 with opposite party No. 2. Assurance was given by opposite party No. 2 that mechanic would be sent and product would be got repaired within 2-3 days. Even after passing of one month thereafter nothing was done by the opposite parties. Complainant is being deprived of its use in the peak summer season as they have failed to repair or replace it. Opposite party No. 2 refused to take any action. When complainant raised protest, filthy language was hurled upon him by opposite party No. 1. Complainant alleges that act and conduct of the opposite parties have caused him mental tension, agony and loss. In these circumstances, he has filed complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') alleging deficiency in service and unfair trade practice on the part of the opposite parties and seeking direction from this forum to them to repair his Refrigerator or in the alternative to refund its price alongwith interest @ 18% P.A. from the date of purchase till realisation; pay Rs. 50,000/- as damages for mental tension, agony and loss to his physical health and reputation and Rs. 5500/- as litigation expenses.<br /> 2. Opposite party No 1 filed its version taking legal objections that complainant has conceded material facts; complaint has been filed on false facts; it is hopelessly barred by time; it is not maintainable and controversy can be decided only by civil court as elabroate oral evidence, cross examination and documentation are required. On merits, it admits that Refrigerator was sold to the complainant. No guarantee was given. Only warranty was given which was as per terms and conditions of the company. Inter-alia its plea is that complainant has violated the terms and conditions of the warranty by way of getting Refrigerator checked from unauthorised electrician. It denies the remaining averments in the complaint.<br /> 3. Opposite party No. 2 was served for 13/7/07. No-one came present on its behalf. Accordingly, it has been proceeded against exparte.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of bill No. 4101 dated 8.5.04 (Ex. C-2), photocopy of Warranty Card (Ex. C-3) and photocopy of Owners Manual (Ex. C-4).<br /> 5. In rebuttal, on behalf of opposite party No 1 affidavit (Ex. R-1) of Sh. Subhash Bansal, Proprietor has been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 7. Sale of Kelvinator Refrigerator manufactured by Electrolux Kelvinator Limited by opposite No. 1 to the complainant on 8.5.04 for a consideration of Rs. 7,000/- vide bill, copy of which is Ex. C-2, is not in dispute. Another fact which does not remain in controversy is that Kelvinator Refrigerator purchased by the complainant has warranty of one year on it and thereafter four years service contract. According to the warranty, company in consideration of the Service Contract Charges paid, maintain and repair the Refrigerator's hermetically sealed system or such parts or components thereof or replace the same with parts in working condition as and when required, if the sealed system of normal, proper use, is proved to its satisfaction. This is evident from the documents Ex. C-3 & Ex. C-4 which are copies of the warranty card and Owner's Manual respectively.<br /> 8. Mr. Gupta, learned counsel for the complainant argued that as per terms and conditions of the Warranty and Owner's Manual, refrigerator of the complainant which is lying dead should have either been repaired or its price be paid by the opposite parties. Nothing has been done by the opposite parties. It being so, deficiency in service and unfair trade practice are proved.<br /> 9. Mr. Goyal, learned counsel for opposite party No. 1 argued that warranty of the Refrigerator has been given by the Company. Repair, if any, was to be done by company or its authorised service station as per terms of the warranty. Moreover, company which is the manufacturer of the product has been given up by the complainant.<br /> 10. We have considered the respective arguments.<br /> 11. Complainant in his affidavit Ex. C-1 reiterates his version. There is no specific denial by opposite party No. 1 about the fact that Refrigerator has become dead. Similarly opposite party No. 1 does not state in so many words that it was approached by the complainant and assurance was given that product would be got repaired from the mechanic. So far as opposite party No. 2, which is the service centre of the company is concerned, it did not muster courage to contest the complaint. Opposite party No. 1 does not deny the lodging of complaint No. 141 dated 1.5.07 by the complainant with opposite party No. 2 regarding defect in the product. Affidavit Ex. R-1 of Sh. Subhash Bansal cannot be given any weight. Allegation of opposite party No. 1 is that complainant has violated the terms and conditions of the warranty by way of getting the refrigerator checked from unauthorised electrician is not substantiated as is is not known who was the unauthorised electrician before whom refrigerator was produced for checking. From the evidence on the record one fact is established that refrigerator purchased by the complainant has stopped functioning. It is completely out of order. Requests made to opposite parties No. 1 & 2 for repair of the product have been paid deaf ears by them. Product is within the warranty period. Opposite parties have not provided requisite service. Opposite party No. 1 cannot escape its liability merely on the ground that it is merely seller of the refrigerator as dealer/distributor. Name of opposite party No. 3 has been got deleted by the complainant on the ground that its address was not known to him. Moreover, impleadment of manufacturer is not necessary. On this ground alone dealer cannot wriggle out of the situation. In this view of the matter, we are fortified by the observations of the Hon'ble National Commission in the case of Blue Chip India Vs. Dr. Chandrashekara Patial 2007(1) CPC 409 . Similar view has been held by the Hon'ble National Commission in the case of Ashok Khan Vs. Abdul Karim & Others 2005 CTJ 1207 (CP)(NCDRC) in which it was that it cannot be said that agent or dealer is not jointly and severally liable for the defects in the goods as the contract is through dealer. Their privity of contract is with him. In view of the facts, circumstances and the evidence discussed above, conclusion is that deficiency in service on the part of opposite parties No. 1 & 2 is writ large.<br /> 12. Now question arises as to which relief should be accorded to the complainant in the given situation. In our view direction deserves to be given to opposite parties No. 1&2 to repair the refrigerator and make it functional. Complainant is craving for compensation of Rs. 50,000/-. Due to the deficiency in service on the part of the opposite parties, complainant has been deprived of the use of the refrigerator in the peak summer season. This must have caused him and his family mental tension and agony. In such a situation, some compensation is warranted which we assess as Rs. 750/-. For this, we are fortified from the observations of Hon'ble State Commission of Madhya Pradesh in the case of J. Radhakrishnan Vs. A Basheera & Another 2001(2) CLT 225 wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 13. No other point was urged before us at the time of arguments.<br /> 14. In the result, complaint is accepted against opposite parties No. 1 & 2 with cost of Rs. 1,000/-. They are directed to do as under :-<br /> i)Repair the refrigerator of the complainant purchased vide bill dated 8.5.04, copy of which is Ex. C-2 and make it functional within 7 days from the date of receipt of copy of this order.<br /> ii)Pay Rs. 750/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> Compliance with regard to payment of compensation and cost be made within 30 days from the date of receipt of copy of this order failing which the amount of compensation under Section 14(1)(d) would carry interest @ 9% P.A. till payment.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 24-08-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />