Date of Filing 07.07.2023

                                                                                                                  Date of Disposal: 19.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,(ICWA), BL.,                                                                    ……MEMBER-II

CC.No.65/2023

THIS TUESDAY, THE 19^th DAY OF DECEMBER 2023

Mrs. Malarkodi,

W/o.N.Kumar,

No.28, M.G.Nagar, 1^st Street,

Poonamallee, Chennai 600 056.                                                            ......Complainant.

                                                                              //Vs//

1.M/s.Vasanth & Co.

   Rep. by its Director,

   Having Office at No.65/26,

   Rajiv Gandhi Salai,

   Old Mahabalipuram Road,

   Sholinganallur –Main Signal & Police Station,

   Chennai 600 119.

2.M/s.Vasanth & Co.,

   Rep. by its Director,

   Corporate Office at

   No.14, Railway Border, 1^st Street,

   Cauveri Nagar, Saidapet, Chennai 600 015.

3.M/s.Liebheer Appliances India Private Limited,

   Rep. by its Director,

   Office at No.32/1, 1122/1, 2^nd Floor,

   Bobbili Raja Salai,

   K.K.Nagar, Chennai 600 078.                                                           ….opposite parties.

Counsel for the complainant                                            : Mr.B.Balamurali, Advocate.

Counsel for the opposite parties                                      :  Party in persons.

This complaint coming before us on various dates and finally on 11.12.2023 in the presence of Mr.B.Balamurali, counsel for the complainant and the opposite parties 1 to 3 appeared party in persons and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in selling defective product (LIEBHERR REFRIGIRATOR) along with a prayer to replace the product with a new one or to refund the cost of the product with 24% interest from the date of complaint till the date of realization, to pay a sum of Rs.1,50,000/- towards compensation for the mental agony caused to the complainant along with cost of the proceedings.

Summary of facts culminating into complaint:-

2. Dissatisfied with the product sold by the opposite parties 1 & 2 and manufactured by the 3^rd opposite party, the present complaint was preferred by the complainant.

3. On 29.06.2022 the product LIEBHERR REFRIGIRATOR was purchased by the complainant from opposite parties 1 & 2 for a sum of Rs.19,000/- and was delivered and installed on the same day.  From the day one of installation the product was not functioning properly and there was cooling problem due to defective compressor.  On 09.07.2022 on complaint by the complainant to the 1^st opposite party, the 3^rd opposite party’s service person tried to solve but could not and hence a complaint was given to opposite parties 1 to 3 to replace the product or to refund the amount.  However, there was no response inspite of sending legal notice to all the opposite parties.  Thus aggrieved the present complaint was filed to direct the opposite parties to replace the product with a new one or to refund the cost of the product with 24% interest from the date of complaint till date of realization, to pay a sum of Rs.1,50,000/- towards compensation for the mental agony caused to the complainant along with cost of the proceedings.

The crux of the defence put forth by the opposite parties 1 & 2:-

4. Opposite parties 1 & 2 filed written version disputing the complaint allegations stating that they are renowned large Household appliances chain in south India selling various brand products.  The representatives of the opposite parties explained details of the Liebheer Refrigerator to the complainant and only after getting satisfied the complainant purchased the same.  From the beginning only the service men of the 3^rd opposite party was handling the case and opposite parties 1 & 2 never attended the complaint and thus they sought for the dismissal of the complaint.

The crux of the defence put forth by the 3^rd opposite party:-

5. The 3^rd opposite party filed written version appearing as party in person stating that they are Multi-National German Company having widespread sales of product across India.  Admitting the selling of the product with one year warranty, it is stated that the warranty card contains terms and conditions and the warranty becomes void when the product was used for commercial purpose.  It was submitted that the complainant had used the product for Ladies Hostel i.e. for commercial purpose and hence the warranty becomes void as per the terms and conditions.  Immediately on receiving a complaint on 07.09.2022, 09.09.2022 a service technician was sent for service who found the issue in the compressor.  As per the service technician OLP Relay was required and as it was not available it was taken to the complainant’s place but it did not match the product.  On 15.09.2023 they were ready to replace the compressor at free of cost but the complainant denied the offer and demanded refund of the cost.  Thus the complainant did not provide sufficient time for the opposite parties to investigate about the problem and to solve it.  The burden of proof of defective quality of the product lies on the complainant and thus disputing all allegations of the complainant, the 3^rd opposite party sought for dismissal of the complaint.

6. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A8 were submitted. On the side of opposite parties 1 & 2 proof affidavit was filed and documents marked as Ex.B1 & Ex.B2 were submitted.  On the side of 3^rd opposite party proof affidavit was filed and documents marked as Ex.B3 & Ex.B4 were submitted.

Points for consideration:-

1.   Whether the complaint as filed before this commission is maintainable as a defence was taken by the 3^rd opposite party that the transactions involved is a “commercial transaction”?

2. Whether the complaint allegations as to existence of manufacturing defects in the product sold by the opposite parties 1 & 2 and manufactured by the 3^rd opposite party has been successfully proved by the complainant by admissible evidence and whether the same amounts to deficiency in service when they failed to rectify the same?

3. If so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Purchase bill issued by the opposite party to the complainant dated 29.06.2022 was marked as Ex.A1;
2. Service receipt by opposite party to the complainant dated 07.09.2022 was marked as Ex.A2;
3. Legal notice by the complainant to the opposite parties dated 03.10.2022 was marked as Ex.A3;
4. Acknowledgement card of the opposite parties for proof of delivery were marked as Ex.A4 to Ex.A6;
5. Photos of the product was marked as Ex.A7;
6. Service person photo was marked as Ex.A8.

5. The following documents were filed on the side of opposite parties 1 & 2 in support of their defence;

1) Warranty terms and condition was marked as Ex.B1;

2) User manual was marked as Ex.B2;

The following documents were filed on the side of 3^rd opposite party in support of their defence;

1) Warranty terms and condition was marked as Ex.B3;

2) User manual was marked as Ex.B4;

7. As the 3^rd opposite party had raised a defence that the product sold was used for commercial purpose i.e. for ‘Ladies Hostel’ and that the complaint is not maintainable, this Commission decides to discuss the issue of maintainability on the said ground at the first instance. Though the Statement was made that it was used for Ladies Hostel, no proof was submitted by the 3^rd opposite party to the effect that the complainant was running a Ladies Hostel and used the product for the same in support of their contentions.  Further it is seen that as per Ex.A2 the invoice was issued in the name of Malarkodi /complainant and not in the name of any commercial enterprises.  Even if the statement of the 3^rd opposite party is considered for argument purpose running Ladies Hostel could not be termed as a commercial activity as the same could be safely brought under the exclusion clause under the definition of “Consumer” that the said activity/running of Ladies Hostel was carried out in a small scale for the purpose of earning livelihood.

8.  For the above reason the defence taken by the 3^rd opposite party could not be entertained by this Commission and we answer the point holding that the complaint is maintainable before this Commission and in favour of the complainant.

Point No.2:-

9. It is argued by the 3^rd opposite party that the complainant did not give sufficient time for investigation of the defect and also that the offer for replacement of compressor at free of cost was turned down by the complainant.

10.  Though written argument was filed by the opposite parties 1 & 2 they did not turn up for adducing any oral arguments inspite of opportunities provided and hence oral arguments on the side of opposite parties 1 & 2 was closed.  The written argument filed by them was considered to decide the issue on merits.

11. As per the written arguments of opposite parties 1 & 2, their only defence is that the complainant purchased the product after understanding the warranty condition and as they had breached the warranty condition they are not entitled to reliefs.

12. We have already held above in the point No.1 that the submission by the opposite parties that the complainant was carrying on Ladies Hostel was not proved by the opposite parties.  In such scenario the question of complainant breaching the terms and conditions of the user manual by using it for commercial purpose does not arise at all.  Further the 3^rd opposite party’s defence that they offered for replacement of compressor at free of cost was not substantiated by them by any material evidence.  The service report Ex.A2 issued by the 3^rd opposite party Technician clearly shows that OLP Relay has to be changed in the new Refrigerator as Relay OLP was wrongly fixed by Manufacturer. The said documentary evidence was not disputed by the documents.  Further it is also found that the unit was not working without OLP checking.  Thus the manufacturing defect was sufficiently and satisfactorily proved by the complainant.

13.  When the opposite parties defence of replacement offer was not proved we have no other option but to accept the complainant’s allegations as proved and to hold that the opposite parties had committed deficiency in service by selling a product with inherent manufacturing defects and in not rectifying the same. 

14. Though the opposite parties 1 & 2 tried to washout their hands by stating that they merely sold the product and it was only the 3^rd opposite party who was dealing with the complainant from the initial stage they could not be absolved from their liability for the reason that the complainant approached the opposite parties 1 & 2 only for their renowned name and fame in the commercial market.  Hence they are also liable to see that their customer was provided with a Fair product for the consideration they paid to them.  Thus liability was imposed upon both the opposite parties 1 to 3. This point answered accordingly in favour of complainant and as against the opposite parties 1 to 3.

Point No.3:-

15. As we have held above that the inherent manufacturing defect has been clearly proved by the complainant sufficiently and also that all the opposite parties are jointly and severally had committed deficiency in service, we find it opt to order replacement of the product in entirety or to refund the cost of the product i.e. 19,000/- with 6% interest from the date of purchase i.e. 29.06.2022 till realization. Further a compensation of Rs.50,000/- is ordered to be paid by all the opposite parties to the complainant.  Though the consideration paid was a lesser amount the mental agony and hardship suffered by the complainant could not be equated with the amount as from day one of purchase the complainant was struggling with the product and the opposite parties for getting a worth product. Hence this Commission feels that the complainant is entitled for the said compensation.  We also award Rs.10,000/- towards litigation expenses.

In the result, the complaint is partly allowed against the opposite parties 1 to 3 directing them jointly and severally

a) To replace the LIEBHERR REFRIGIRATOR with a new one or in alternative to refund the sum of Rs.19,000/- (Rupees nineteen thousand only) being the cost of Refrigerator with 6% interest from 29.06.2022 till realization within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, enhanced interest at the rate of 9% will be levied on the said amount from 29.06.2022 till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 19^th day of December 2023.

   Sd/-                                                       Sd/-                                                                   Sd/-

MEMBER-II                                    MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties 1 & 2:-

List of documents filed by the 3^rd opposite party:-

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  MEMBER-II                               MEMBER-I                                                      PRESIDENT