PRESENT: Ms. Anuradha Gupta, Adv. for Complainant.

Sh. Rajiv Sharma, Adv. for OPs

PER ASHOK RAJ BHANDARI, MEMBER

         Concisely put, the Complainant had purchased a new Chimney Model Dura 90, on 26.09.2009, from OP No.1, being manufactured by OP No. 2, for a total consideration of Rs.16,700/- vide Bill, copy of which is at Annexure C-1. The Chimney was installed at his residence by OP No. 2. It was alleged that on 27.10.2008, the said Chimney fell down and broke into two pieces, at the time, when the milk was boiling on the gas and fortunately, there was no mishap. Accordingly, he approached the OP No. 1 and requested him to replace the Chimney, which it flatly refused. However, in the letter, it was clearly mentioned that there was 11 months warranty if the product suffers from manufacturing defect. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed that the OPs be directed to refund Rs.16,700/- as cost of the Chimney; to pay Rs.50,000/- as compensation for mental tension, harassment & agony. The Complainant has also claimed Rs.5500/- as costs of litigation, alongwith interest @18% per annum.

2]       Notice of the complaint was sent to OPs seeking their version of the case. 

3]       OPs No. 1 & 2 in their joint reply, while admitting the factual matrix of the case, pleaded that the Chimney was installed by OP No.1 and not by OP No 2. The Chimney did not fall down on its own or due to any manufacturing defect, but only the glass portion of the Chimney got broken and there were food particles spread on the wall of the kitchen and it was observed that a pressure cooker seems to have burst and it was lying in the corner of the kitchen. Therefore, the breakage of the glass was on account of the impact of bursting of the pressure cooker, which is not covered under the warranty. It was further pleaded that if the Chimney had not been installed properly, it could have fallen within 2-3 days after its use; whereas, the present complaint arose only after a month of the date of installation. It was asserted that the Chimney was installed on a plate, which was gripped in the wall through bits with 3 screws and the installation process of the chimney finds due mention in the manual/instruction book of the Chimney and the OPs were quite experienced as they had already installed 700 Chimneys till date and there was no complaint of any Chimney falling on its own in any such case. It was submitted that Chimney was brought to the Forum and was inspected by Sh. Ashok Sehgal, Expert & Head of the Service Franchise, who opined that the Chimney was not having any physical damage on the body, which could be due to sudden fall and that food particles were stuck inside the Chimney and there were no marks of milk, as alleged by the Complainant (Annexure R/2). All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]       Parties led evidence in support of their contentions.

5]       We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1 & 2. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant in that he purchased a new Chimney Model Dura 90, on 26.09.2009, from OP No.1, manufactured by OP No. 2, for a sum of Rs.16,700/- as per Bill (Annexure C-1), the said Chimney was installed at the residence of the Complainant by OP No. 2 have all been admitted. As per the Complainant, on 27.10.2008, i.e. after about a month of its installation, the said Chimney fell down and broke into two pieces, at the time when the milk was being boiled on the gas, but fortunately, there was no mishap. The Complainant informed the OP No.1, asking it to replace the said Chimney, which was refused; whereas, in the letter written by OP, it is clearly stated that there is a warranty for 11 months if the product suffers from any manufacturing defect. On this ground, the Complainant has alleged deficiency in service on the part of the OPs and claimed the refund of Rs.16,700/- as cost of the Chimney and compensation & litigation costs etc.  

ii] The OPs in their reply, apart from taking certain preliminary objections, have categorically denied all the allegations of the Complainant, but admitted that the Chimney was installed by OP No.1 and not by OP No 2. It has been further stated that the Chimney did not fall down on its own or due to any manufacturing defect, but only the glass portion of the Chimney got broken and there were food particles spread on the walls of the kitchen and it was observed that a pressure cooker seems to have burst and it was lying in the corner of the kitchen. Therefore, the breakage of the glass was on account of the impact of bursting of the pressure cooker, which is not covered under the warranty. It has been further argued both in the pleadings, as well as, during oral arguments, that if the Chimney had not been installed properly, it could have fallen within 2-3 days after its use; whereas, the present complaint arose only after about a month of the date of installation. The OP says that the Chimney is installed on a plate, which is gripped in the wall through bits with 3 screws and the installation process of the chimney finds due mention in the manual/instruction book of the Chimney and the OPs are quite experienced as they have already installed 700 Chimneys till date and there has been no complaint of any Chimney falling on its own, due to manufacturing defect or otherwise.

iii] During the course of proceedings, the Chimney was brought to the Forum and was inspected by Sh. Ashok Sehgal, Expert & Head of the Service Franchise, who said that the Chimney was not having any physical damage on the body, which could be due to sudden fall and that food particles were stuck inside the Chimney and there were no marks of milk, as alleged by the Complainant (Annexure R/2).

iv] The detailed analysis of the case reveals that the Complainant has not been able to provide any conclusive evidence or proof in support of his allegation that the Chimney suffered from any manufacturing defect or that it was installed in his house in a defective manner, due to which it fell down on its own. There is also no expert opinion or any technical report in support of the case of the Complainant, thereby proving any manufacturing defect in the Chimney. But, at the same time, it cannot be denied that the Chimney did fall down and the glass portion of the Chimney and certain other parts got damaged, as a result of the said fall. It is also a fact that this incident happened within the warranty period of 11 months. It is also true that the said happening took place in less than a month of the installation of the Chimney, which is a matter of serious concern for the OPs as regards their workmanship and quality of manufacture of their Chimney and still more the same is true for the Complainant as well. Even the OPs have not been able to prove the fact of bursting of the pressure cooker, due to which the Chimney could have fallen down. On the whole, seeing the case in its entirety, there is definitely some weight and substance in the Complainant. Having invested a big sum of Rs.16,700/- in purchasing a brand new kitchen chimney of a reputed company, the Complainant could not have expected it to fall down in less than a month and thereby, getting deprived of its intended use. Therefore, the Complainant has surely and definitely suffered loss and personal inconvenience on account of the fall of the Chimney for more than one year by now.  

6]       Keeping in view the above detailed analysis of the entire case, we find that the complaint in question has merit, substance and weight in favour of the Complainant and against the OPs. Therefore, the complaint deserves to be accepted in favour of the Complainant and against the OPs. We order accordingly. We decide the complaint in favour of the Complainant and against the OPs

7]       In view of the above, we direct the OPs to do the following: -

a]  to undertake complete overhauling, repairs and replacement of parts of the broken Chimney, so as to make it fully functional and operative for its effective use by the Complainant. The OPs shall further re-install the fully functional Chimney at the residence of the Complainant, free of cost, and shall also provide a fresh warranty of 11 months from the date of re-installation of the Chimney.

b]  to pay compensation of Rs.5,000/- for causing physical harassment, mental agony and pain to the Complainant.

c]  to pay litigation costs of Rs.2500/-.

The aforesaid order be complied with by the OPs, jointly and severally, within a period of 04 weeks from the date of receipt of the certified copy of the order, failing which the OPs shall pay the sum of Rs.5,000/-, along with interest @18% p.a. from the date of filing of this complaint i.e. 10.12.2008, till realization, besides paying litigation costs of Rs.2,500/- and also undertaking the work of complete repairs and replacement of parts and re-installation of the Chimney, as stated above.

7]     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

09.12.2009                                    

‘Dutt’