In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 183 / 2008 1) M/s. Facor Alloys Ltd., Everest House, 17th Floor, 46-C, Chowringee Road, Kolkata-71. ---------- Complainant ---Verses--- 1) M/s. Usha International Ltd., P-36, Transport Depot Road, Kolkata-700088. 2) M/s. Moon Star Refrigerator, Engineering Co., 1, James Hicky Sarani, Kolkata-69. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattacharya, Member Order No. 1 6 Dated 1 1 / 0 2 / 2 0 1 0 .
Complainant M/s. Facor Alloys Ltd. by filing a Petition of Complaint under Section 12 of the Consumer Protection Act, 1986 has prayed for replacing the defective water cooler supplied by the Opposite Party to the Complainant.or payment of full price of the cooler with 12% interest and compensation of Rs. 5,000/- and litigation cost of Rs. 1,000/-. The fact of the case, in short, is that the O.P. supplied on 14th January, 2008 one Usha make water cooler to the Complainant for its Kolkata Office in terms of their Quotation No. AC&R/CBB/07-08 dated 14.01.2008 comprising of price, terms of payment and guaranty etc. On 7th March the Complainant placed Purchase Order for Usha make water cooler as per the quotation submitted by the O.P. A cheque bearing No. 472799 dated 07.03.2008 of Rs. 16,020/- was drawn in favour of the O.P. for supply of water cooler to the Complainant. The contractor of the O.Ps. installed the water cooler in the Office of the Complainant and after installation it was found that the water cooler was leaking from the Day-1 of installation and the same was brought to the notice of the O.Ps. several times over telephone. O.Ps’ mechanic visited the Office of the Complainant but the defect of leaking from the water cooler could not be stopped. And accordingly, the Complainant requested the O.P. to replace the defective cooler. But as the O.Ps. have not replaced the same the Complainant has filed this case with the aforesaid prayer. The O.P Usha International Ltd. filed the WV on 27.08.2008 alleging, inter-alia, that the case is not maintainable in the present form and Law, that the Petition of Complaint is frivolous and vexatious containing false allegations. The company, a commercial establishment, is not a consumer within the meaning of Section 2(1)(d) of Consumer Protection Act, 1986 and the Complainant bought the water cooler for its commercial purposes and installed the same at its place of work. Their main grievance is that the warranty, terms & conditions only provide for the repair or rectification of any part to be defective, if it is acknowledged by the O.P., and accordingly, the liability of the O.Ps. is limited only to that extent, and in this respect they have referred a judgement in the matter of Maruti Udyog Ltd.-vs-Susheel Kumar Gabgotra & Another wherein the Hon’ble Supreme Court has observed that neither the replacement of the product nor the refund, all conditions have been well defined under the Sales of Goods Act which does not allow the customer to pray for any relief beyond the stipulated warranty terms & conditions; so the Petition of Complaint should be dismissed as it is devoid of any merit. DECISIONS WITH REASONS : - Admittedly, the Complainant purchased one water cooler from the O.P. no. 2 on the basis of a quotation from the O.P. no. 1 for the Office use of the Complainant. As the water cooler is used at his Office there is no reason to believe/accept that it is used for commercial purposes, so the allegation of the O.Ps. that the Complainant is not a consumer as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 does not hold good. We have perused the quotation, Annexure-I showing that net amount was Rs. 16,020/- and the full amount was paid and warranty period was one year from the date of purchase. We have perused Annexure-II wherefrom it appears that the net price of the water cooler is Rs. 16,020/-. It was installed as per challan in the Office of the Complainant on 11.03.2008, vide Annexure-III. It appears from the letter of the Complainant addressed to the O.P. dated 15.05.2008, Annexure-IV wherein he has complained that from Day-1 onwards the water cooler was leaking which was brought to the notice of the O.P. and after repeated reminders a mechanic from Moon Star Refrigeration Engineering Co. visited the Office of the Complainant and some adjustment was done on the cooler but the leak could not be rectified and as the problem of leakage could not be solved the Complainant requested the O.P. to replace the water cooler immediately. Annexure-V is the reminder requesting the O.P. to take immediate action in this regard. But it appears on perusal of the record that no action whatsoever was taken from the side of the O.P. We have also perused the Evidence on Affidavit of the Complainant Pratap Lodge who said that on the basis of Power of Attorney he has filed this case and he purchased the cooler from the O.P. on payment of Rs. 16,020/- and he has also stated all about the facts of defect of the goods, viz., leakage from the water cooler. We have also perused the Brief Notes of Argument submitted by the Complainant on 19.05.2009 wherein he has also agitated the same point, viz., the defect of the water cooler and he has also specifically mentioned the leakage of the water cooler just after one day of installation of the same. We have also perused the Brief Notes of Argument of the O.P. wherein they have stated that they appeared in this case and filed their Written Version and they have also stated that the Complainant has prayed for relief beyond the purview of the warranty terms & conditions. They have not filed any documents nor they have submitted their Evidence. We again reiterate the point that, admittedly, the Complainant purchased the water cooler from the Opposite Party and just after one day after installation the defect of leakage was found out and it was brought to the knowledge of the O.P. for many a time, but their mechanic visited and tried to remove the defect but failed and as such the Complainant has prayed for refund of money to the extent of Rs. 16,020/-. Hence, they have prayed for compensation of Rs. 5,000/- and litigation cost of Rs. 1,000/-. Therefore, considering the facts and circumstances, Evidence both on Affidavit and documentary, we are of the opinion that there is merit in the case of the Complainant, and we further hold that the water cooler supplied to the Complainant is defective and the Complainant accordingly, is entitled to get relief. Hence, ordered that the Petition of Complaint is allowed on contest with cost against the O.Ps. The O.P. nos. 1 & 2 are directed to refund Rs. 16,020/- to the Complainant; jointly / severally and to pay compensation of Rs. 2,000/- and litigation cost of Rs. 500/- positively within 45 days from the passing of this judgement failing which it will attract interest @ 10% per annum till full realization. Fees paid are correct. Supply Certified Copy to the Parties on payment of prescribed fees. _____Sd-______ ______Sd-_____ MEMBER PRESIDENT | 
