Date of Filling      :  04.11.2013.

                                                                                            Date of Disposal  :  31.08.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT.  S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint No.55/2013

(Dated this Wednesday the 31^st day of August 2016)

K. Viswanathan,

New No.3, Old No.1 A,

Krishnapuram Street,

Choolaimedu P.O.,

Chennai - 600 094.                                                                      … Complainant.

/ Versus /

1.  Whirlpool of India Ltd.,

     No.4/107, Ramapuram Road,

     Sathya Nagar, MGR Garden,

     Ramapuram,

     Valsaravakkam,

     Chennai - 600 089.

2.  Whirlpool of India Ltd.,

     Corporate Office – WHIRLPOOL House,

     Plot No.40, Sector 44,

     Gurgaon,

     Haryana - 121 002.

3.  M/s. Vasanth & Co.,

     No.37/1 & 37/2, North Usman Road,

     T. Nagar,

     Chennai - 600 017.                                                         … Opposite parties.

This complaint is coming upon before us finally on 10.08.2016 in the presence of the complainant, M/s. L. Thanigaivel, Counsel for the 1 & 2^nd opposite parties and Mr. Siva Suyambu, Counsel for the 3^rd opposite party and having perused the documents, evidences and  oral arguments of both sides, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 to 3 opposite parties for seeking relief to refund the cost price of the Whirlpool washing machine is Rs.8,250/- and transport charge of Rs.150/- and to a pay compensation Rs.25,000/- towards suffering and pain with cost.

2.       The brief averments of the complaint is as follows:-

A Whirlpool SA Spin 801 washing machine was purchased by the complainant on 02.11.2010 with the 3^rd opposite party who is the dealer.  The machine carried a warrantee period of 2 years.  The cost of the washing machine is Rs.8,250 (plus Rs.150/- transport charge).  The purchase bill stipulates that “Goods once sold cannot be taken back.  All the service complaints have to be reported directly to the manufacturer only”.  During the warrantee period, service providers were called for more than 10 times to attend to the malfunctioning of the washing machine.  Although the service providers responded to the complaints, they could not find a permanent solution to the problem in the washing machine, which was abnormally poor discharge of waste water and stagnation of soap water solution over the washed cloths for a long time.

3.       Some of the plastic parts i.e. safely lids over the washer and the drier broken down completely during the warrantee period itself.  The service providers failed to find from their inventory, new safety lids to replace broken safety lids, at a cost.  Because of the abnormal problem the machine remained without use during larger part of the warrantee period and even today, it remains without use for want of the safety lids and rectification of the pipeline discharging waste water.  The complainant requested the service provider several times for replacement of the plastic safely lids under warranty clause and it was informed that plastic parts are not covered under warranty.  Though he was willing to pay the cost of the safety lids, the service provider informed the complainant orally that the plastic safely lids for this particular model are no longer manufactured and are out of their inventory forever.  That means the machine will have to be used without the safety lids or the machine will have to be condemned as irreparable during the warranty period itself because of the non availability of important plastic spares.

4.       The practice of promoting the chemical while attending a service requests amounted to unfair trade practice.  Concealing the fact for the consumer of the requirement of using expensive chemical to remove clogging in discharge pipeline is another unfair trade practice.  Selling a poor quality product and unable to provide spares even at a price is an unfair trade practice on the part of the opposite parties.  A written complaint dated:18.07.2012 was sent by registered post to the 1^st opposite party for which there was no response.  Again on 25.07.2012 a registered complaint was sent to the 2^nd opposite party with a copy to the 1^st opposite party.  Neither the 2^nd nor the 3^rd opposite party acknowledged the complaints sent by the complainant and not come forward to comply the demands which caused much pain and leads to deficiency of service.  Hence this complaint.

5.       The contention of written version of the 1 & 2^nd opposite parties is  briefly as follows:-

 The 1 & 2^nd opposite parties state that the complainant cannot eke out any remedy against them for the reason he has not satisfied this Forum as to how he is a consumer.  According to section 2 (d) (i) & (ii) of the act “Consumer” means “any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment when such use is made with the approval of such person”.

6.       That indisputably the machine stands in the name of K.V. Sriram, such been the backdrop without a spec of doubt it could be culled out that the complainant lacks locus standi to set the law in motion, that apart the complainant also has miserably failed to place any material much less than plead under what authority he is pursuing the  above complainant.  That the appliance except encountering minor hitch / snag due to the wear and tear has not reported for any major complaints so far, rather the complaints referred by the complainant are negligible in nature and by no would affect the over all performance of the appliance.  It would be useful to note that it is not the complainant’s case that due to the above snags the appliance was performing within the parameters as enunciated in the owner’s manual.

7.       Evennow ready and willing to go out of their way to ensure that the appliance is functioning within the parameters as set out in the warranty subject to the complainant permitting them to inspect the appliance and do the needful in that context and paying necessary charges for the spares which are excluded under the warranty.   The 1 & 2^nd opposite parties states that the allegation of water clogging and its aftermath are invented for the purpose of setting the law in motion, which otherwise is obviously absent.  The 1 & 2^nd opposite parties at no point of time compelled much less than counseled the complainant to go for the chemical to fix the problem of water clogging and it is nothing but superfluous on the complainant’s part to presume that water clogging in the appliance would be a permanent feature and to purchase the chemical is indispensable one.

8.       It is particularly denied that their product would encounter clogging atleast biyearly therefore the users have to incur additional expenditure.  The further averments are unwarranted one and the complainant can least deliver any sermon about their business nuances.  The 1 & 2^nd opposite parties manufacture products in conformity with the guidelines issued by the statutory authorities from time to time in this reference hence the complainant cannot attribute any deficiency.   It is not necessary for the consumer to have a look whether the clothes have dried or not as the appliance is fitted with an accessory which will emanate sound once the process is over.

9.       It is vehemently denied that they have comprised on the consumer safety.  The complainant may not be aware that their product is being launched and sold to the public only after obtaining necessary approval in all forms from the statutory authorities.  It would not be out of context to state that K.V. Sriram, purchased the product with his eyes wide open and was explained in detail about the nature of material etc. used therein thus it is nothing but preposterous on the part of the 3^rd party to speak about the same.  The rest of the averments are imported for the purpose of adding spice to the complaint which otherwise too bland.

10.     There is no cause of action for the above complaint and the same has been invented for the purpose of setting the law in motion which otherwise is patently deficient.   The parties are bound to fall in line with the terms of the warranty.  This complaint is not only misconceived but also an abuse of process of law.  Therefore the complaint is liable to be dismissed with exemplary cost as prescribed u/s 26 of the Act.

11.     The contention of written version of the 3^rd opposite party is  briefly as follows:-

The 3^rd opposite party denies all the allegations and averments contained in the complaint except those that are specifically admitted herein.  It is true that the complainant purchased a Whirlpool SA Spin Washing machine from the 3^rd opposite party on 02.11.2010 only after verifying the conditions of the product.  At the time of purchase of the said product the 3^rd opposite party clearly instructed the complainant that for any manufacturing defect the complainant should directly contact the 1^st opposite party or their authorized service centre and the same was accepted by the complainant.  The complainant himself submitted that the 3^rd opposite party is not liable in this complaint para nos.6 & 28 and hence the complaint against the 3^rd opposite party is not maintainable.  There is no allegation such as acts of negligence, deficiency in service of dereliction of duty on the part of the 3^rd opposite party and hence this complaint is liable to be dismissed.

12.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A5 were marked.   While so, on the side of the 1 & 2^nd opposite parties, the proof affidavit is filed  and Ex.B1 is marked, on the side of the 2^nd opposite party for his evidence and on the side of the 3^rd opposite party the proof affidavit is filed and no documents marked on his side.

13.    At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

14.     Written arguments filed and the oral arguments adduced on the sides of the complainant, 1 & 2^nd opposite parties.   Neither the written arguments filed nor adduced oral arguments by the 3^rd opposite party.

15.     Point no.1:-

According to the averments of the complainant is that, a Whirlpool SA Spin 801 washing machine was purchased by the complainant on 02.11.2010 through the dealer who is arrayed as the 3^rd opposite party herein which carries warranty for a period of 2 years and during the warranty period the service providers were called in more than 10 times to attend the malfunctioning of the above said washing machine on different dates.  But they could not find permanent solution to the problem in the washing  machine which was abnormally poor discharge of waste water and stagnation of soap water solution over the washed cloths for long time and safety lids over the washer and the drier broken down completely during the warrantee period itself and the service providers failed to find out the same and due to the above said problem, the machine remained without used during larger part of warrantee period and even till now.  Hence the complainant sustained mental agony and hardship which clearly amounts to unfair trade practice as well as deficiency of service.   It is further averred that in spite of written complaints dated: 18.07.2012 and 25.07.2012 were sent through registered post to the 1 & 2^nd opposite parties respectively, they did not respond to rectify the demand of the complainant.

16.     On the other hand, the 1 & 2^nd opposite parties fully denied the allegations made in the complaint and narrated that the alleged machine stands in the name of K.V. Sriram to set the law in motion and therefore this complainant is not a consumer under section 2 (d) (ii) & (ii) in respect of the alleged washing machine.   It is further contended that parties are bound to fall in line with the terms of the warranty and the complainant having used the appliance over the period of 2 years.  The complainant is not at all entitled for any relief as sought for in the complaint and in fact there is no cause of action for the said complaint and also the 1 & 2 opposite parties have manufactured the products in conformity with the guidelines issued by the statutory authorities from time to time and therefore, the complainant could not attribute any deficiency.  Furthermore, even now the 1 & 2^nd opposite parties are ready and willing to go out of their way to ensure that the appliance is functioning within the parameters as set out in the warranty subject to the complainant permitting him to inspect the appliance and do the needful in that context and paying necessary charges for the spares  which are excluded under the warranty.   In respect of the 3^rd opposite party, it is rightly pointed out in his written version that there is no specific allegation of negligence or deficiency in service on his part and therefore, this Forum  need not proceed against the 3^rd opposite party.

17.     At the outset, it goes without saying that it is the duty of the complainant to prove the allegations made in the complaint against the 1 & 2^nd opposite parties with reliable and consistent evidence beyond all doubts.  First of all, on careful perusal of the proof affidavit submitted by the complainant it is seen that Ex.A1 is the cash bill issued by the 3^rd opposite party for the purchase of the alleged washing machine on 02.11.2010.  It is further learnt from the evidence of the complainant that there were some problem occurred in the discharge of the waste water and stagnation of soap water solution and some more defects.  The complainant called the service provider more than 10 times and in proof of the same Ex.A2 is marked & Ex.A3, 2 photographs of the Whirlpool washing machine with damaged washer safety lid and drier without safety lid are marked and thereafter, though the service provider attended to the complainant’s washing machine several times but they have failed to find out the problem and not could rectify the defects and therefore, the complainant written Ex.A4 & Ex.A5  letters to the 1 & 2^nd opposite parties respectively, but the 1 & 2^nd opposite parties did not respond to the same.   At the outset, on going through the proof affidavit of the 1 & 2^nd opposite parties, it is learnt that the service provider of the 1 & 2^nd opposite parties had immediately attended in all the occasions and rectified the defects pointed out by the complainant then and there on receipt of the complaint.   It is further stated that the parties are bound with the terms and conditions of the warranty and the same was admitted by the purchaser at the time of purchasing the washing machine.  In this connection Ex.B1, user manual is marked and the warranty period for the said washing machine is 2 years and infact that the appliance except encountering minor hitch / snag due to the wear and tear has nor reported for any major complaints so far and the allegation made in the complaint are not a deliberate one.  It is further learnt that it is vehemently contended in the proof affidavit of the 1 & 2^nd opposite parties that the complainant is not a consumer under section 21 (d) of the Consumer Protection Act.

18.     At this juncture, on rival submission put forth on either side, this Forum has to consider at this instance, as to whether the complainant is a consumer or not under the purview of the section 2(1) d of the Consumer Protection Act.  In this aspect, it is just and necessary to say that the Ex.A1, cash bill for the purchase of the alleged Whirlpool washing machine which was issued by the 3^rd opposite party.   On seeing Ex.A1 through naked eyes, it is crystal clear that the said bill was issued in the name of K.V. Sriram and not in the name of the complainant herein.  If for arguments sake, the complainant herein may be the father of the above said Sriram if he wants to file this complaint on behalf of his son Mr. K.V. Sriram, the complainant ought to have filed the complaint through representing capacity with due authorization or by means of power of attorney given by K.V. Sriram.  But there is no such averments found in the complaint.  Furthermore, it is pertinent to note that the signature found in the Ex.A1 is of one Mr. K.V. Sriram.  If it is so, the complainant herein having an intension to suppress the said fact and per contra mentioned in the complaint itself, as if he has purchased the alleged product from the 3^rd opposite party which clearly reveals the fact that the complainant herein has moved this Forum without clean hands.  Therefore, it is rightly pointed out by the 1 & 2^nd opposite parties, with locus standi the complainant has come forward to file this complaint is in question.  In this connection, the complainant has not at all placed any proof to disprove the condition raised by the 1 & 2^nd opposite parties.  

19.     On further perusal of the proof affidavit of the complainant, it is seen that he has narrated that though the service providers were called for more than 10 times to attend the malfunctioning of the washing machine.  Regarding this fact, on going through the written version as well as the proof affidavit of the 1 & 2^nd opposite parties, it has been stated that due actions was taken  by the 1 & 2^nd opposite parties for the alleged dates of complaints.  More so, it is learnt that when the alleged washing machine was purchased by one Mr. K.V. Sriram, he was explained in detail about the nature of material etc. used there in.  Therefore, it is nothing but preposterous on the part of the 3^rd opposite party to speak about the same.   Hence without appearance of said K.V. Sriram, this Forum cannot arrive just decision of the allegations made by the complainant herein.

20.     The next point to be taken to consideration is, as to where there is any manufacturing defect in the alleged product?  since the alleged product was having frequent problem even during the warranty period.  In this connection, the duty to prove the manufacturing defect is only on the shoulders of the complainant.  In fact, nothing material evidences has been produced by the complainant before this Forum either through evidence or any document.  Not only that, the complainant has not come forward to take steps for obtaining an expert opinion regarding the alleged manufacturing defect. In such circumstances, both the parties are binding upon the terms and conditions regarding warranty of the Ex.B1, user manual.  In furtherance, it is learnt that the complainant, having used the appliances left, right and centre its span over a period of 2 years has to be kept in mind. 

21.     In the light of the above facts and circumstances, it is crystal clear that the complainant has not proved with reliable and consistent evidence regarding the allegations made in the complaint.  So the plea taken by the 1 & 2^nd opposite parties holds good.  Therefore, there is no proper evidence to show that there is a deficiency of service on the part of the opposite parties.  Thus the point no.1 is answered accordingly.

22.     Point no.2:-

As per the decision arrived in point no.1, the complainant is not at all entitled for any relief as prayed in the complaint.  Thus, point no.2 is answered accordingly.

23.     In the result, this complaint is dismissed.  No cost.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 31^st    August  2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

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

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

Nil.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT