Tamil Nadu

South Chennai

CC/395/2016

M/s.Freddy Mascarenhas - Complainant(s)

Versus

M/s. IFB Industries Ltd - Opp.Party(s)

Tonifa Miranda

02 Aug 2019

ORDER

                                                                        Date of Filing  : 16.11.2016

                                                                          Date of Order : 02.08.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.395/2016

DATED THIS FRIDAY THE 02^ND DAY OF AUGUST 2019

                                 

Mr. Freddy Mascarenhas,

S/o. Mr. Francis Marcarenhas,

No.21-B, Thirumagal Nagar,

Selaiyur,

Chennai – 600 073.                                                        .. Complainant.                                        

 

                                                                                                 ..Versus..

1. IFB Industries Limited,

Represented by its CEO,

Registered Office:

No.14, Taratolla Road,

Kolkata – 700 088.

 

2. IFB Industries Limited,

Represented by its Area Manager,

Old No.37, New No.6, Arcot Road,

Vadapalani,

Chennai – 600 026.

 

3. Vishaka Enterprises,

Represented by its Manager,

Franchisee: IFB Industries Limited,

No.11, Venkatasamy Street,

Selaiyur,

Chennai – 600 073.                                                 ..  Opposite parties.

 

Counsel for the complainant                 : Mrs. Tonifia Miranda

Counsel for the opposite parties 1 & 2 : M/s. V.T. Narendiran &   

                                                                 another

3^rd opposite party                                  : Exparte

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 3 under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.1,00,000/- towards compensation for mental agony, deficiency in service and cost of Rs.50,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that on 18.05.2002, the complainant purchased one IFB Executive Plus washing machine through the 2^nd opposite party.   The said IFB washing machine was installed on 30.05.2002 with a warranty of 2 years from 30.05.2002 to 29.05.2004. Thereafter, the complainant paid a sum of Rs.750/- for extension of warranty for 2 years and continued the extension of warranty till 26.11.2016.  The 3^rd opposite party was the authorised service franchise of the complainant’s area.   The complainant renewed the Annual Maintenance Contract with an intention to get genuine spare parts at the earliest very near and the technician also be available very close to that area.  The complainant submits that the opposite parties serviced the machine to his satisfaction. On 25.11.2015, the complainant registered an email complaint vide ticket No.1101108247 stating that the product was not working.  On 27.11.2015, a technician Mr. E. Babu attended the fault and stated that the motor has to be replaced.  The technician renewed the AMC and stated that he will replace the motor.  The complainant submits that the technician wantonly and deliberately misrepresented to the complainant that the motor has to be replaced and thereafter, he has not turned up.  The washing machine was lying untouched and unused for a long time.  The complainant and his wife made repeated calls for repair through email for servicing the washing machine.  On 29.12.2015, IFB Customer Service Mr. Bimal Soreng shared numbers of IFB Branch Co-ordinator, Mr. Magesh and the IFB Branch Manager Mr. Deva and narrated the problems  through email.  The complainant suffered nearly for two months without using the washing machine. On 06.01.2016, a technician named Mr. Kumar attended the fault in the machine and stated that the motor was in a good condition and the belt need to be replaced. On 07.01.2016, the technician changed the belt and handed over the invoice cum receipt for a sum of Rs.1,060/- and the machine started to work.  The defective service of the 1^st technician resulted in such a turmoil to the complainant.  The complainant issued legal notice dated:13.01.2016 for which, there is no reply.    The act of the opposite parties 1 & 2 amount to deficiency in service and unfair trade practice which caused great mental agony.    Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.   The opposite parties 1 & 2  state that the impugned IFB washing machine is of 15 years old and deliberate suppression of fact that the said machine is now functioning and hence, this complaint has to be dismissed.  The opposite parties 1 & 2 state that the complainant used the washing machine from 2002 and because the complainant fully satisfied had renewed AMC successively till 26.11.2016.   The opposite parties 1 & 2 submit that the AMC contract based on which the above complaint is filed does not provide for any time limit for repairs as the same is subject to availability of spare parts, therefore mere delay would not amount to consumer deficiency.  Hence, the complaint would not be maintainable as a consumer deficiency.   The opposite parties 1 & 2 state that since the machine was over 12 years old, the complainant had refused to extend the AMC and offered an exchange scheme wherein he had to pay only 50% which offer the complainant refused and he wanted a new machine for free of cost.  The opposite parties 1 & 2 state that the washing machine was installed on 30.05.2002.   The product had a warranty of 2 years from 30.05.2002 to 29.05.2004 and the said machine 15 years old and the AMC renewed till 26.11.2016.  The opposite parties pleaded and contended that so many times the complainant gave complaint all the times were attended to regularly and diligently the period of dispute from 25.11.2015 when he had first made a complaint 29.12.2015.   The opposite parties’ representative Mr. Kumar attended the fault on 06.01.2016 and the belt was changed and 07.01.2016.   The complainant sent legal notice on 13.01.2016 and rejoinder notice on 29.07.2016 for which, they are not to be blamed.   Therefore, there is no deficiency in service on the part of the opposite parties 1 & 2 and hence, the complaint is liable to be dismissed.  

3.     In spite of receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence, the 3^rd opposite party was set ex-parte. 

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A19 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and no document is marked on the side of the opposite parties 1 & 2.

5.      The point for consideration is:-

Whether the complainant entitled to a sum of Rs.1,00,000/- towards compensation for mental agony and deficiency in service with cost of Rs.50,000/- as prayed for?

6.      On point:-

In spite of receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence, the 3^rd opposite party was set ex-parte.  The complainant and the opposite parties 1 & 2 have filed their respective written arguments.  Heard their Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The learned counsel for the complainant would contend that on 18.05.2002, the complainant purchased one IFB Executive Plus washing machine through the 2^nd opposite party.  Ex.A1 the copy of Customer Order Form. Ex.A2 is the copy of invoice dated:18.05.2002.  The said IFB washing machine was installed on 30.05.2002 with a warranty of 2 years from 30.05.2002 to 29.05.2004.  Ex.A3 is the copy of extended Warranty for 2 years. Thereafter, the complainant paid a sum of Rs.750/- for extension of warranty for 2 years and continued the extension of warranty till 26.11.2016.  Ex.A3 to Ex.A11 are the receipt cum invoice for the Annual Maintenance Contract from 19.02.2006 to 26.11.2016.  The 3^rd opposite party was the authorised service franchise of the complainant’s area.   The complainant renewed the Annual Maintenance Contract with an intention to get genuine spare parts at the earliest very near and the technician also be available very close to that area.   Further the contention of the complainant is that the opposite parties serviced the machine to his satisfaction.  On 25.11.2015, the complainant registered an email complaint vide ticket No.1101108247 as per Ex.A12 stating that the product was not working.  On 27.11.2015, a technician Mr. E. Babu attended the fault and stated that the motor has to be replaced.  The technician renewed the AMC and stated that he will replace the motor as per Ex.A11, Copy of Annual Maintenance Contract.  

7.     Further the contention of the complainant is that the technician wantonly and deliberately misrepresented to the complainant that the motor has to be replaced and thereafter, he has not turned up.  The washing machine was lying untouched and unused for a long time.  The complainant and his wife made repeated calls for repair as per Ex.A13 & Ex.A14, copy of email correspondence.  On 29.12.2015, IFB Customer Service Mr. Bimal Soreng shared numbers of IFB Branch Co-ordinator, Mr. Magesh and the IFB Branch Manager Mr. Deva and narrated the problems as Ex.A14, email correspondence.  The complainant suffered nearly for two months without using the washing machine. On 06.01.2016, a technician named Mr. Kumar attended the fault in the machine and stated that the motor was in a good condition and the belt need to be replaced. On 07.01.2016, the technician changed the belt and handed over the invoice cum receipt for a sum of Rs.1,060/- as per Ex.A15 and the machine started to work proves the defective delayed service of the 1^st technician of the opposite parties establishes the deficiency in service and unfair trade practice.  The complainant issued legal notice dated:13.01.2016 as per Ex.A16 for which, there is no reply.  Hence, the complainant has filed this case claiming compensation.

8.     The learned Counsel for complainant cited the decision reported in:

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

FIRST APPEAL NO.359/2011

Between

VILA INDIA

-Versus-

MARATHA MANDAL INSTITUTE OF DENTAL SCIENCES

Held that

          “17. It is seen from the documents filed by the parties the complainants have allowed the technician of the OP to carry out the repair.  But in spite of their efforts they could not rectify the defect permanently.  The Engineers of the Ops visited the college and on thorough checking they found that the problem with CPU card and informed to the college authorities that the repair is beyond the respondents’ engineer.  This one admission is enough to deny the other contentions taken by the Ops in their defense.

          10. Both, deficiency in service, and unfair trade practice, are evident in the case.  Deficiency in service, by not honouring the AMC promptly and dutifully, unfair trade practice, by selling an expensive imaging and diagnostic machine with an AMC as an integral part of the sale, and being unfair and deceptive in not being explicit and forthcoming with the buyer at the time of sale that some / crucial part(s) are / could be contingent on operational arrangements with a foreign principal company”.

9.     The learned Counsel for the opposite parties 1 & 2 contended that admittedly, the impugned IFB washing machine is of 15 years old.  But the opposite parties 1 & 2 accepted that the complainant has renewed Annual Maintenance Contract for the washing machine continuously till 26.11.2016.  Further the contention of the opposite parties 1 & 2 is that the complainant has used the washing machine from 2002 till 2016 in full satisfaction.   This complaint is based on AMC contract which does not provide any time limit for that and subject to availability of spare parts. The delay would not amount to consumer deficiency.  But on a careful perusal of entire records, the opposite party has not pleaded and proved the non-availability of belt required for the washing machine while repairing.  On the other hand, it is not denied that one of the Service Engineer attended the fault and reported that the motor was fault and it should be replaced.  On the other hand, the Service Technician, Mr. Kumar told that only repair in the belt and was replaced proves the deficiency in service and unfair trade practice.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 3 shall pay a sum of Rs.15,000/- towards compensation for mental agony and deficiency in service and cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.15,000/- (Rupees Fifteen thousand only) towards compensation for mental agony and deficiency in service and cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.  

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 02^nd day of August 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

		Copy of Customer Order Form
		Copy of invoice
		Copy of extended warranty for 2 years
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of Annual Maintenance Contract
		Copy of email complaint
		Copy of email correspondence
		Copy of email correspondence
		Copy of invoice cum receipt
		Copy of legal notice to the opposite parties
		Copy of rejoinder notice
		Copy of speed post receipts
		Copy of acknowledgment of the 3rd opposite party

 

OPPOSITE PARTIES 1 & 2’ SIDE DOCUMENTS:-  NIL

 

                              

MEMBER                                                                                PRESIDENT