C.K. Lekhamma, Member.

          The case of the complainant is as follows:

          The complainant is conducting a cool Bar.  He purchased an Electrolux Refrigerator on 11/09/2008 at a price  of Rs. 14,800/- from the 2^nd opposite party which was manufactured by the 1^st opposite party.  The said refrigerator  was purchased for the purpose of storing ice cream and other cool drinks in complainant’s shop. In 1^st week of July 2009 the complainant noticed that the refrigerator was not properly working.  On 05-07-2009 the complainant made a complaint to the 2^nd opposite party.  After two weeks, on 22-07-2009 the technician of  the 2^nd opposite party came and adjusted the  thermostat which resulted sever damages to soda bottle and the  compliant informed the same to the 2^nd opposite party.  On 02-08-2009 another technician came and he removed the thermostat, bulb, holder, etc.  However even thereafter the refrigerator is not properly working.  On several occasions the complainant informed the said fact to the 2^nd opposite party.  But there was no response from the side of them and the complainant ;issued a letter dated 18-08-2009 to the 2^nd opposite party.  Thereafter the 2^nd opposite party did not care to replace the refrigerator with a trouble free one or not even cared to repair the same.  Even now the refrigerator is not working properly and the ice cream and other cool drinks kept in the same will became useless due to the defect in the refrigerator.   Obviously the refrigerator purchased by the complainant is having some manufacturing defects occurred during in the course of manufacturing.

          Hence the complainant is seeking the following directions against the opposite parties.

To direct the opposite parties to replace the refrigerator with a brand new trouble free one of the same capacity or in the alternative direct the opposite parties to pay an amount of Rs. 14,800/- being the value of the refrigerator  with interest together with compensation for mental agony and costs of the proceedings.

2. Version of the 1^st opposite party is as follows:

There is absolutely no defect in the refrigerator sold to the complainant.  The averments that income from the complainant’s  Ice cream Parlour  is the only source of income of the complainant and his family is absolutely false. The refrigerator sold to the complainant is intended for domestic purpose only.  Whereas complainant is using the refrigerator in his shop for commercial use.  Complainant was repeatedly informed that the said refrigerator is intended for domestic use only and it should not be used in his shop. Complainant was also warned that the frequent opening and closing of the refrigerator in the shop would adversely affect the cooling inside the refrigerator.  A complaint was received from the complainant through the second opposite party on 08/07/2009.  Accordingly first opposite party had called the complainant on 08/07/2009, 09/07/2009 and on 10/07/2009 in his land phone.  But there was no response.  As per the  complaint dated 27/7/2009 the 1^st opposite party’s  service engineer  examined the same and he found that there was no defect in the refrigerator.  Thereafter on 09-08-2009 also found that there was absolutely no defect in the device.  In order to satisfy the complainant the service engineer has offered for change of thermostat, costing around Rs. 400/- free of cost.  Subsequently the same was replaced.  Complainant again raised the cooling complaint on 13/08/2009. First opposite party assured the complainant that they can demonstrate the cooling ability of the refrigerator before the complainant at their service centre if the complainant handed over the device to the opposite parties.     For that they deputed their service engineer but the complainant refused to do so.  There is absolutely no merit in this consumer complaint.  Complainant has no cause of action against the first opposite party.

3. The complainant and the first opposite party represented through the counsel.  The 2^nd opposite party remained absent.  The complainant was examined as PW1 and Exts. A1 to A5 were marked on his side.  DW1 and DW2 were examined on  the side of the 1^st opposite party.  Thereafter we have heard the respective counsel.

4. The following points that arose for consideration

i.  Whether the complainant is entitled to get replacement of the disputed refrigerator or  refund its price?

ii. compensation and costs if any

5. Point Nos. I &2  The first opposite party averred that the complainant has purchased the device for, commercial purpose and he is conducting the cool bar by engaging  employees.  Even though they averred so there is no evidence before us to prove such allegations.  The learned counsel for the complainant rightly relied  on the following decision. 

    1996 (1) CPJ 324 (National commission) Amtrex Ambience  

    Ltd. Vs. M/s. Alpha Radios & another

In view of the above authority we are only to hold that the complainant is a consumer

There is no dispute with regard to the purchase of the refrigerator under dispute.   The averment of the 1^st opposite party is that there is no defect in the refrigerator.  Further 1^st opposite party stated that the device sold to the complainant is for domestic purpose only.  In stead of that the complainant is using it for his commercial purpose.  The frequent opening and closing of the same would adversely affect its cooling effect. 

Ext. A1 and A2 bill and warranty card, show the transaction between the parties.  Ext. A3 series are the  copies of letters issued by the complainant etters to the 2^nd opposite party. Ext.A5 is the specifications of the disputed device. 

There is no evidence on record to show that the 2^nd opposite party had convinced the complainant that the refrigerator supplied by them is solely for domestic purpose. During  cross-examination DW1 agreed that there is no whisper in Ext. A5 it is that the refrigerator under dispute is intended only for domestic purpose.  He further deposed that, in page 4 of Ext. A5 it is stated that commercial ice cream can be stored in that fridge.

The 1^st opposite party agreed that they replaced the thermostat worth Rs. 400/-on free of cost.  But they averred that it was only for the satisfaction the complainant.  There is no convincing evidence before us that the refrigerator supplied to the complainant is  free from defect, especially since the 1^st opposite party admitted that on several occasions their  service engineers inspected the disputed device. In the above circumstance it is evident   that the complainant has been deprived of enjoying the benefits of the device under dispute.  Therefore the  complainant is entitled to get replacement of the refrigerator with a new one in accordance of his use from the 1^st opposite party.

In the facts and circumstances of the case we are not ordering any compensation and costs of the proceedings.

6.     Accordingly we partly allow the complaint and direct that :

the 1^st opposite party shall replace the defective refrigerator with a new one according to the choice of the complainant, suitable for non-domestic purpose or in the  alternative  the 1^st opposite party shall refund the price of the device in question to the complainant. In either of the event the complainant shall return the refrigerator under dispute to the 1^st opposite party simultaneously.  In both cases the 1^st opposite party shall bear the transporting expenses. 

          The above said order shall be complied with within a period of one month   from the date of receipt of a copy of this order

Pronounced in the open Forum on this the 31^st  day of May  2011.