This complaint coming up before us for hearing on 06-03-14 in the presence of Sri P.V.Ramana, advocate for complainant and of Sri K.Sarangapani, Advocate for 1^st opposite party and of Sri K.V.Udaya Bhaskar, Advocate for 2^nd opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Prabhakar Gupta, Member:-

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking directions on the opposite parties to pay an amount of Rs.61,288/- in total along with interest @24% p.a. from the date of the petition till the date of realization.

2.   In brief the averments of the complaint are these:

          The complainant herein purchased a washing machine belongs to  Whirlpool Company on 30-03-2012 against the payment of Rs.13,800/- from the 1^st opposite party.  The 2^nd opposite party is the manufacturer of purchased machine. The 1^st opposite party is the authorized distributor for the manufacturing appliances of the 2^nd opposite party.  Further, the user manual which containing warranty card belongs to 2^nd opposite party, issued by the 1^st opposite party.  As per the given user manual the warranty period is two years.  While that is so, the purchased washing machine worked properly for a period of one month only.  After that the said machine giving trouble inrespect of bottom wheels.  On intimation by the complainant the said defect was rectified through the technician belongs to the 1^st opposite party by replacing the said bottom wheels.  Again the said washing machine got some trouble in connection with mother board. For which the machine is not displaying the digital numbers, display of timer and nature of wash.  Subsequently the trouble was also informed to the 1^st opposite party by the complainant since the 1^st opposite party is the authorized dealer for the manufacturing appliances of the 2^nd opposite party and got purchased from the 1^st opposite party.  In turn the 1^st opposite party sent his technician.  After the examination of the machine, the Mechanic expressed his inability to rectify the same since the machine is having mother board problem.  On the advice of the said technician the complainant handed-over the machine to the workshop belongs to the 1^st opposite party in the month of May, 2012. Now also the said defective machine is lying with the workshop of 1^st opposite party for rectification.  Inspite of several requests and personal visits of the complainant, the 1^st opposite party failed to replace the mother board and also failed to rectify the occurred problems.  As the complainant vexed with the inordinate delay in rectification of the problem, the complainant issued a legal notice on 29-04-2012 demanding the 1^st opposite party to replace mother board and rectification of all the problems and to deliver the machine in a good condition since the 1^st opposite party is the authorized dealer for the 2^nd opposite party.  Inspite of this notice also the 1^st opposite party neither rectify the problem nor delivered the said machine in a good condition to the complainant.  Even the 1^st opposite party failed to issue reply to issued legal notice.  As there is no other go the complainant filed the present complaint seeking relief as prayed for.

3.      1^st Opposite party filed its version which is in brief as follows. 

        In reply to the complaint the 1^st opposite party filed his version denying all the facts of the complaint at 1^st para.  However, he admitted the rectification of the bottom wheels which were damaged at 2^nd para of his version.  Further, he stated that the complainant not handed-over the said defective machine to him for rectification of mother board.  In the same para he also mentioned that the complainant used the machine with heavy load of cloths and advised him not to put such heavy load cloths for washing.  In 3^rd para he mentioned that the complainant misused the washing machine against user manual of the machine.  Further, he also admitted the problem of mother board and that the same was rectified by his mechanic since occurred due to wiring problem.  At 4^th para the 1^st opposite party specifically mentioned that the complainant is not entitled for compensation, since the defect have already rectified.  Further, he also mentioned that if the complainant seeks any remedy for the defects, it is only the curing of machine in a fixed period.  Hence, he prayed to dismiss the above complaint.

4.      2^nd Opposite party filed its version which is in brief as follows. 

        In reply to the complaint the 2^nd opposite party filed his version stating that the 1^st opposite party is not at all their authorized dealer and he is the distributor of various appliances belongs to so many companies. He also mentioned that the 1^st opposite party used to purchase seconds appliances and used to sell the same to his customers. For which his version is that the present defective machine is categorized as second sale.  Further, he mentioned that since the complainant purchased the said machine from the 1^st opposite party who is not at all their dealer, he is responsible person for all the consequences. Hence, he prayed this Forum to dismiss the complaint against him.

5.      The complainant and opposite parties filed their respective affidavits. Exs.A-1 to A-7 was marked on behalf of the complainant.  No documents were marked on behalf of the 1^st opposite party or 2^nd opposite party.

6.   Now the points that arose for consideration in this complaint are:

1. Whether the complainant is entitled for the reliefs as prayed for?
2. Whether there is any deficiency of service on the part of opposite parties 1& 2.
3. To what relief?

7.  POINT No.1&2:-  

        With the pleadings of the complaint and also version of the 1^st & 2^nd opposite parties it is an admitted fact that the present complainant purchased the said subject matter washing machine from the 1^st opposite party against the payment of valid price.  Further, the fact of subject matter machine belongs to 2^nd opposite party i.e., manufactured by the 2^nd opposite party and purchased by the complainant through the 1^st opposite party who is the dealer to 2^nd opposite party.  These facts also confirmed and corroborated by             Ex.A-1& Ex.A-2 which are having the nature of cash bill and user manual issued by the 1^st opposite party.  There is no dispute with regard to fact of purchase.  Further, as per the Ex.A-2 which is having the nature of user manual the guarantee period is two years for the subject machine.  With the contents of Ex.A-2 which is having the nature of user manual it is the defect that the same was belongs to the 2^nd opposite party’s company pertaining to the subject matter issue.  Since the said user manual which containing warranty card belongs to 2^nd opposite party, he is also responsible for all the consequences in connection with the subject machine, though the same was issued by the 1^st opposite party.  Further, inspite of legal notice the opposite parties did not rectify the defect and not delivered the machine in a good condition, even the opposite parties did not received the legal notices.  Ex.A-3 is the office copy of the legal notice, Ex.A-4 is unserved postal cover.  So, both are responsible persons for the present litigation.  In this view we cannot accept the version of 2^nd opposite party that the 1^st opposite party not at all their authorized dealer and so they are noway concerned with the present litigation.  Hence, we confirm liability and responsibility on both the opposite parties.

        As per the version of the 1^st opposite party he admitted that the fact of purchase and the fact of rectification occurred within one month from the date of purchase.  Further, he also admitted the fact that the present defect in connection with mother board.

As per the version filed by the 1^st opposite party he denied about the handing over of the defective machine to him.  Whereas the 1^st opposite party not specifically denied in his affidavit about handing over of the defective machine to him.  However in his version he mentioned that if at all any defect in the machine, the complainant is having remedy for curing of the machine in a fixed period.  The fact also corroborated with the attitude of the 1^st opposite party when the complainant issued a notice to the 1^st opposite party to produce the machine before the Forum on a specific date.  The 1^st opposite party neither produced the machine nor received the said notice.  The issued notice has been returned with an endorsement that ‘intimation was given, not claimed hence returned’.  Ex.A-5 is the memo, Ex.A-6 is the notice copy, Ex.A-7 is returned postal cover.  So, adverse inference can be drawn that the complainant handedover the machine to the 1^st opposite party for rectification and now also the same is with the 1^st opposite party.

With regard to the defects, it is the defect that occurred from the beginning of the purchased machine/subject machine. Out of the defects some were rectified by the opposite parties.  So, we have to take an opinion that the remaining defects which were arised to be presumed that they are genuine problems.  On the admission of the opposite parties the present defect in connection with the mother board has been rectified and subsequently it was not rectified.  So, adverse inference can be drawn both the opposite parties sold the defective machine to the complainant.  In these circumstances both the opposite parties are liable for the rectification of arised problems. 

8.      POINT NO. 3:-

          Coming to the point of claim, the complainant claimed an amount of Rs.61,288/- in total.  As per the above discussion we are noticed that the purchased machine/subject machine is having defect only with mother board. Except that one, there is no allegation made by the complainant.  So we cannot accept the entire claim of the complainant in view of the authority reported in 2012(1) CPR 106(NC) in a case B.Srinivasa Rao Vs. The Managing Director TAFE accessories Ltd., and another where their Lordships held that if there is a defect in connection with AC, replacing of entire car is not at all maintainable.   However the complainant is entitled for compensation to his mental agony and cots of the complaint.

9.     In the result, the complaint is allowed in part as indicated below

        1.  The 1^st & 2^nd opposite parties are directed to hand over the defective washing machine in a good condition to the complainant within one month from the date of receipt of this order.

2.  Further, the 1^st &2^nd opposite parties are directed to pay

     Rs.5,000/-  towards mental agony to the complainant.

1. Further, the 1^st & 2^nd opposite parties are directed to pay Rs.2,000/-  towards costs of the complaint.

        The reliefs granted above to be complied by the 1^st & 2^nd opposite parties within 30 days from the date of receipt of this order.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 21^th day of March, 2014.

Sd/-XXX                                  Sd/-XXX                                  Sd/-XXX

MEMBER                                  MEMBER                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    NIL

                                                                                                       Sd/-XXX

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.