Filed On:06.06.2013
Disposed On:29.07.2015
THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S. PANDIAN, B.SC., L.L.M : PRESIDENT
TMT. S. SUJATHA, B.Sc., : MEMBER-I
THIRU. V. VENKATESAN, M.A.B.Ed., M.B.A., M.Phil., B.L., : MEMBER-II
Wednesday, the Day of 29th July - 2015
CC. No. 28/2013
S. Chellappan
F1, Sun Apartments
No. 6, Mandapam Road
Kilpauk, Chennai – 600 010. … Complainant
-Vs-
1. The Proprietor
Vasant & Co,
No. 191, P.H. Road
Pursawalkam
Chennai – 600 010.
2. The Regional Manager
Whirlpool of India Limited
No. 16/6, Parivakkam Main Raod
Seenerkuppam
Poonamallee
Chennai – 600 056. …Opposite Parties
Counsel For Complainant : Party-in-persion
Counsel For Opposite Party-1 : Mr. Siva Suyambu, Advocate
Counsel for Opposite Party-2 : M/s. V. Shankar, Advocate
The Complaint is coming upon before us finally on 17.06.2015 in the presence of the complainant who is appeared as Party-in-Person and Mr. Siva Suyambu, Advocate on the side of the opposite party-1 and M/s. V. Shankar, Advocate on the side of the opposite party-2 appeared and upon hearing arguments on the side of the both and perused the documents and evidence, this Forum delivered the following:
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of the Consumer Protection Act, 1986, to direct the opposite parties to refund the purchase amount of washing Machine of 15700/- and additional AMC cash of Rs.2749/- and Rs.1,00,000/- towards compensation with cost of Rs.10,000/- to the complainant.
The Brief Facts of the Complaint are as follows:
1 The Complainant has purchased the washing machine of the for a sum of Rs.15,700/- Manufactured by the second opposite party from the 1st opposite party who is the authorized dealer of the second opposite party vide their bill dated 19.09.2008, the opposite parties gave the two years warranty for the same.
2. Thereafter he had entered into on Annual Maintenance Contract with the second opposite party by paying Rs.2,749/- on 14.12.2008 to the second opposite party for two years from 19.09.2010 to 18.09.2012.
3. The above machine did not function and therefore it was replaced with new machine (Model White Magic 123 700S) on 14.11.2011 by the second opposite party.
4. Even the replaced washing Machine also got defective which was attended second opposite party’s service person on 26.03.2012 whose identification No. is, SR. No. 0312057425 further the said machine again got out of order on 02.04.2012 and he made complaint to the second opposite party thereafter one of the service personnel came to the complainant’s residence on 04.04.2012 and informed him after dismantling the machine that he will come again to attend the fault with required spares.
5. Thereafter Nobody has turned up to set right the machine till now which clearly shows their unfair trade practice hence the complainant put to irreparable loss and suffered mental agony, hardship for the past six months.
6. Though he has sent many more representation through his mails put the opposite parties never turn to rectify the defects. Hence, the complaint.
The contention of the Witten Version filed by the opposite party-1 as briefly as follows:
7. This complaint is not maintainable in law and on facts. It is true that the complainant purchased a whirlpool Washing machine from this opposite party on 19.09.2008. They warranty expired on completion of 2 years from the date of purchase of the said product. This Opposite Party’s liability comes to an end when warranty expires.
8. They are nothing to do with annual maintenance contract entered between the complainant and 2nd opposite party. Complainant has dragged this opposite party with ulterior motive.
9. There is no allegation such as acts of negligence, deficiency in service or dereliction of duty on the part of this opposite party. The complaint is liable to be dismissed.
The Contention of the Written Version filed by the Opposite Party-2 as briefly as follows:
10. The 2nd opposite party denies all the allegations that are contained in the complaint except those that are specifically admitted herein.
11. This complaint is neither maintainable in law nor on facts and has to be dismissed in limini.
12. It is stated that, the complainant had purchased a top loading washing machine from them in the year 2008, as he expressed some dissatisfaction about it’s functioning, this opposite party without, going into the merits and demerits of the same got it replaced with a new one on 14.11.2011 and the same is subject to terms and conditions set out under the AMC and warranty.
13. It is stated that the complainant preferred a complaint, upon which the 2nd Opposite Party diligently checked the washing machine, rectified the defect and brought it back to good working condition, therefore it lies on the complainant’s mouth to allege that they failed to send their service personnel to set right the apparatus.
14. The 2nd opposite party specifically denies that despite several representations made him through email, they failed to rectify the defects in the impugned washing machine.
15. The above aspects have to be proved with all such material evidence as may be deemed necessary to sustain a claim for compensation under the Consumer Protection Act, 1986 by the complainant. In the instant case, in view of the various facts discussed herein above and on a plain reading of the admitted facts, there is no deficiency in service whatsoever and there is no negligence on the part of the opposite party. Therefore, the 2nd opposite party stands absolved of any liability to pay any compensation and therefore the complainant is no entitled to claim any compensation in this regard.
16. The above complaint is thoroughly misconceived and nothing but an abuse of process of law therefore liable to be dismissed with exemplary cost.
17. On the side of the complainant, proof affidavit filed for his evidence and Ex.A1 to A5 are marked. Similarly the proof affidavit filed on the side of the Opposite party-1 & 2. Ex.B1 is marked on the side of the Opposite Party -2.
18. At this Juncture, the main point for determination before this Forum is,
- Whether there is any deficiency service on the part of the opposite
parties as alleged in the complaint?
- To what other reliefs the complainant is entitled to?
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20. Point No.1:- Regarding this point, this Forum has to consider as to whether the complainant has proved the case of the deficiency in service on the part of the opposite parties by means of acceptable evidence. First of all, on careful perusal of the proof affidavit, it is learnt that the complainant has initially purchased the Washing Machine of Whirlpool on 19.09.2008 from the Opposite Party-1 through Ex.A1. At the time of purchase, the original warranty period was to end on 19.09.2010 which is marked as Ex.A2 and the annual maintenance contract is marked as Ex.A3. It is further stated that the said Washing Machine got frequent repairs in October 2011 and at one point of time, the opposite party -2 had informed that the machine was beyond repair which reveals the fact that the Opposite Party -2 has deliberately delivered the poor quality machine and finally on sending several mails, the opposite party-2 replaced the defective machine with another one on 14.11.2011, for which the letter of replacement is marked as Ex.A4.
21.On the further perusal of the evidence of the complainant that even the replaced machine gone out of order on 26.03.2012 in the span of 4 months from the date of installation and therefore though the complainant contacted the Opposite Party -2, they could not attend the repair properly and thereby again went out of order on 02.04.2012 and again approached by the complainant on 4.4.2012 the opposite party-2 informed the complainant, it will be attended the defects within two days.But actually the opposite party -2 did not turn up to set right the machine till 12.4.2012 and the Ex.A5 E-mails are evident to that fact.The complainant stated, that because of poor quality Washing Machine delivered by the opposite party-2, he suffered lot of hardships and mental agony and thereby the opposite parties had committed the deficiency in service and Unfair Trade Practice.
22.Whileso, on going through the evidence of the Opposite party-1, it is learnt that the opposite party’s liability came to end since the warranty period of 2 years from the date of purchase and there is no allegation such as negligence, deficiency of service on the part of opposite party -1.At the outset, it is learnt from the proof affidavit of opposite party-2, that the parties are bound to fall in line with the terms of the Ex.B1 warranty and it is in appropriate to seek the relief of refund of cost price since the opposite party -2 diligently checked the Washing Machine, rectified the defect and brought it back to good working condition.It is further stated by the opposite party-2 that he denied all other allegations and this complaint is not only misconceived and also to abuse process of law and hence, the complainant is not entitled for any relief.
23.At this juncture the foremost duty of this Forum, is to peruse the rival submissions putforth on either side with due care and caution.On careful perusal, it is learnt that it is an admitted fact that the complainant had purchased a top loading Washing Machine from the opposite party-1 on 19.09.2008 which was manufactured by the opposite party-2.Suddenly, the said Washing Machine was replaced due to the disfunction frequently on 14.11.2011 as per Ex.A4.At this juncture, the next point to be decided is as to whether the complainant has proved the deficiency of service when the replaced Washing Machine also got repaired.From Ex.A5, it is seen that the replaced machine become defective and the same was attended by the service person belongs to the opposite party’s on 26.03.2012 and immediately within the short span of time, again the said washing machine got out of order on 02.04.2012 and inspite of sending E-mail to the opposite party’s the said defective has not been rectified within the reasonable time by the opposite party’s.At the outset, it is pertinent to note that, the first machine got disorder and thereby the new machine was replaced and the said replaced machine also got repaired which clearly shows that the machines were delivered by the opposite parties to the complainant which certainly caused much difficulty since everybody brought the machine for their comfort only, not to suffer more for any default.That too frequent repair creates much mental agony in the minds of the customer which has to be keep in mind.
24.The case in hand it is clearly seen that the frequent repair occurred in the washing machine and the same has not been rectified in time and also it is crystal clear that there is some manufacturing defect.Regarding manufacturing defect, there is repeatedly visit the service for repair, normally in such like situation the onus of proof should be shifted to the side of the opposite party-1 to appoint their own Experts who are always available at their back and call to prove that the article does not suffer from any manufacturing defect.In this case, there is no such document filed by the opposite party but simply says that there is no manufacturing defect as alleged by the complainant which is not enough to accept the same.Hence, the allegation made in the complainant holds good.
In the light of above facts and observations, this forum without having any hesitation hold that there is deficiency in service on the part of the opposite parties.Thus this point No. 1 is answered accordingly.
26. Point No. 2:- In view of the conclusion arrived in the point no. 1, it can be easily to infer that the complainant is entitled to the relief of refund of the purchase price with reasonable compensation and cost. Thus this point No. 2 is answered accordingly.
In the Result, this complainant is allowed in part.Accordingly, the opposite parties are jointly and severally directed to refund the purchase amount of Rs.15,700/- (Rupees Fifteen Thousand Seven Hundred Only) with interest at a rate of 9% P. A. from the date of replacement i.e., from 16.11.2011 to till the date of this order to the complainant, on taking back the defective goods and also to paya sum of Rs. 5,000/- (Rupees Five Thousand Only) towards compensation in all and Rs. 2,000/- (Rupees Two Thousand Only) towards cost of the complaint.Total amount Rs. 22,700/- (Rupees Twenty Two Thousand Seven Hundred Only).
The above said amount shall be payable within one month from the date of the receipt of the copy of this order, failing which the amount shall carry interest at the rate of 9% P.A till the date of payment.
Dictated directly by the president to the Steno-typist, transcribed and computerized by her, corrected by the president and pronounced by us in the open forum on this the 29th July – 2015.
Sd/-*** Sd/-***
Member-I President
List of Complainant Documents:
.A1 Dt. 19.09.2008 - Xerox Copy of Receipt No. 00699
List of Opposite Party – 2 Documents :
Ex.B1 Dt. Xerox Copy of Warranty Terms
Sd/-*** Sd/-***
Member-I President
