BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of August 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.30/2010
(Admitted on 23.01.2010)
Mr.Ashith T Shetty,
Aged about 37 years,
D.No.202,
Shashikirana Apartments,
Navagiri Nagar, Hosabettu,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Deenanath Shetty)
VERSUS
1. Ms. Pai International Electronics Ltd.,
Abhiman Plaza,
Near Bunts Hostel Circle,
Mangalore.
(Advocate for Opposite Party No.1: Sri.Bharathraj Hegde).
2. M/s. Godrez Boyce Manufacturing Co. Ltd.,
Regd. Office, Pirojshah Nagar,
Vikhroli, Mumbai – 400 079.
(Advocate for Opposite Party No.2: Sri.S.R. Ambi).
3. M/s.Godrej Smart Care,
M/s. Can Ref Care,
Shop No.5, Sanflo Complex,
Kuloor Ferry Road, Alake,
Mangalore. ……. OPPOSITE PARTIES
(Opposite Party No.3: Exparte).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant purchased a Godrej Refrigerator of model 330L DFE 25ED from the Opposite Party No.1 on 14.01.2009 by paying Rs.13,890/-. Opposite Party No.1 is the dealer, Opposite Party No.2 is the manufacturer of the above said Refrigerator. It is stated that, the Opposite Party No.1 had extended warranty for a period of five years on the compressor and one year warranty on the other parts of the Refrigerator from the date of purchase against the defective material or workmanship.
It is stated that, in the month of July 2009, the Refrigerator stopped cooling and functioning. The above said problem brought to the knowledge of the Opposite Parties. The Opposite Parties in turn sent a serviceman of the Company to find out the problem and reported to the Complainant that the said Refrigerator has major problem and taken for necessary repairs and the same was delivered on 19.09.2009. Subsequently, the said Refrigerator was in working condition only for 30 days and once again the same problem persisted after elapse of 30 days. The Opposite Parties again inspected the Refrigerator on 18.11.2009 but the cooling problem exists even now. The Complainant had requested the Opposite Parties to replace the Refrigerator but there was no response from the Opposite Parties. It is contended that the Refrigerator sold by the Opposite Parties is defective, even after the replacement of joint and filter, after identifying suction line alluminium and copper joint leakage and replenishing the Refrigerator with gas, the aforesaid problem again persisted within few days. It is stated that, the Refrigerator sold by the Opposite Parties is not upto the standard and hence the above Complaint is filed before this Forum under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to replace the Refrigerator with a new one or to pay the purchase price of Rs.13,890/- with interest at 10% p.a. from the date of purchase till the final payment and also claimed Rs.25,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.3 despite of serving notice neither appeared nor contested the case till this date. Hence we have proceeded exparte as against the Opposite Party No.3. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.1 and 2 appeared through their counsel filed version stated that there is no deficiency as alleged by the Complainant and submitted that, there are some minor problem of cooling with the said Refrigerator and immediately after being called by the Complainant, the technician of the Opposite Party visited the house of the Complainant and set right the problems. It is stated that, the technician opined that there was a small gas leakage and thereby cooling effect of the Refrigerator was reduced and the cabinet was replaced and the defect was rectified. The Complainant satisfied with the repairer and issued an acknowledgement dated 17.09.2009. It is stated that, the Complainant once again called the Opposite Party but the Complainant refused to get the Refrigerator repaired by the technician and the technician came back without repairing and on 14.01.2009 once again registered a new Complaint and the technician visited the house of the Complainant and identified the problem of leakage of gas and the same problem was attended and cured on 9th January 2010 and contended that the Refrigerator has no manufacturing defect and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Refrigerator purchased by him from the Opposite Party No.1 proved to be defective?
- Whether the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Ashith T. Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Complainant produced 6 (six) documents as listed in the annexure. One Sri.R.Soloman (RW1), Branch Commercial Manager of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iv):
Admittedly, on receipt of the sale price of Rs.13,890/, the Opposite Parties sold a Refrigerator on 14.1.2009 to the Complainant. The above said Refrigerator was installed in the residence of the Complainant. Warranty card for a period of 5 years on the compressor and one year warranty on the other parts of the Refrigerator from the date of purchase against the defective material or workmanship was issued by the manufacturer. The Refrigerator was admittedly purchased on 14.1.2009 as stated supra.
Now the point in dispute before this Forum is that, according to the Complainant, the Refrigerator purchased by him on 14.01.2009 for a sum of Rs.13,890/- from the Opposite Party No.1 and manufactured by the Opposite Party No.2 is defective. It is stated that, in the month of July 2009, the said Refrigerator stopped cooling and the same has been repaired despite of that the problems are persisted, hence came up with this Complaint stating that the Refrigerator sold by the Opposite Parties having an inherent defect.
On the contrary, the Opposite Parties as per their written version stated that there is no inherent manufacturing defect in the Refrigerator, there are some minor problem of cooling with the said Refrigerator and immediately after being called by the Complainant, the technician team of the Opposite Party visited the residence of the Complainant and set the things right immediately. According to the Opposite Parties, a small gas leakage and thereby cooling effect of the Refrigerator was reduced and the cabinet was replaced and the defect was rectified immediately and contended that the Complainant on being satisfied acknowledged his satisfaction after the repair and contended that there is no defect.
In the instant case, when the Complainant claim that there is inherent manufacturing defect in the Refrigerator the same is vehemently opposed by the Opposite Parties. The position is well settled that unless a Refrigerator purchased suffers from inherent manufacturing defect question of replacement of said refrigerator by a defect free new Refrigerator or return of its price by the seller to the purchaser does not arise.
The Complainant filed affidavit and produced seven (7) documents. Opposite Party also filed affidavit.
On careful scrutiny of the oral as well as documentary evidence available on record, we find that, the Refrigerator from the beginning of the purchase was suffering from manufacturing defect. The Opposite Parties throughout claim that there were some minor problem of cooling with the said Refrigerator and a small gas leakage and some other minor problems were rectified immediately and contended that Complainant on being satisfied acknowledged his satisfaction. But in the written version and the document No.6 i.e., the service record dated 04.1.2010 clearly reveals that the Refrigerator has gas leakage problems and other problems and the Complainant specifically endorsed that he is not satisfied with the refrigerator because it was creating problem and requested the Opposite Parties to replace the same. Further, the evidence by way of affidavit filed by the Complainant as well as the letter written by the Complainant to the Opposite Party dated 20.11.2009 clearly revels that, the refrigerator has started cooling problem in the month of July 2009 and completely stopped working in the month of August 2009 and the matter was brought to the knowledge of the Opposite Parties and the Opposite Parties were attended the problem, the same was repaired and delivered to the Complainant on 19.9.2009. The said Refrigerator was in working condition for 30 days from 19.9.2009 and again the problem persisted and the company serviceman inspected the Refrigerator on 18.11.2009 once again. In the latest the service card issued by the Opposite Party dated 4.1.2010 i.e., document No.6 made us very clear that the Refrigerator sold by the Opposite Parties has inherent manufacturing defect in the machine for which it failed to work in the aforesaid dates. The above evidence on record produced by the Complainant is not contradicted by the Opposite Parties. But it is contended that, the same is a minor problem.
However, we have gone through the warranty card, wherein the manufacturer stated as under:-
“The Godrej Refrigerator comes with a five years warranty on compressor and a one year warranty on all other parts (except bulb, glass and add-on plastic parts) from the date of purchase against defective material or workmanship. In case of any such defect found during the first year from the date of purchase, Godrej and Boyce Mafg. Company Limited – Appliance Division will undertake repairs to the warranted part free of charge, subject to terms and conditions below. In the warranty period beyond the first year from the date of purchase, only the equipment (the compressor) will be provided free of cost. However, the appliance will be required on payment of necessary charges”.
From the above warranty clause, it is very clear that, in case of defect found in the Refrigerator they will undertake the repairs to the warranted part free of charge. But in the given case, we noticed that the problem in the above Refrigerator persisted every now and then. When that being the case, that also the Refrigerator is one of the regular using of the home appliances, if the defects or problems found every now and then, what is the point in purchasing the above said product. However, the Opposite Party admitted that there are problem but according to them is a minor problem. In the instant case, we noticed that the Refrigerator purchased by the Complainant from the Opposite Parties is within the control of the Opposite Parties and defects developed within the warranty period. In these end of the view, we do not believe the case of the Opposite Parties that the said refrigerator is defect free. On the other hand, the problem assigned by the Complainant seems more probable.
Under that circumstances, we are of the considered opinion that the Refrigerator sold by the Opposite Parties having some problem and the Complainant faced the problem in the Refrigerator every now and then, we can say more than 3 times within a year shows that the Refrigerator is not upto the standard and it has some defect.
Generally, if the goods have manufacturing defect is to be borne by the manufacturer. But that would not mean that the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customer directly. The Dealer having received the amount, undertaken free service and rectify the defects during warranty does not escape liability towards the manufacturing defect found in the goods during the warranty period. In the repetition, the contract is through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, in this case Opposite Party No.1 and 2 i.e., the manufacturer and dealer are jointly and severally liable for the defects found in the Refrigerator.
The Hon’ble National Commission reported in 2009 I CPJ (80) held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
Similarly, the above principles observed by the Hon’ble National Commission applicable to the case on hand.
In view of the above sated reasons, we direct the Opposite Party No.1 and 2 are jointly and severally to replace the new Refrigerator along with fresh warranty by taking back the defective Refrigerator from the Complainant. Or in the alternative the Opposite Party No.1 and 2 shall refund the entire amount of Rs.13,890/- along with interest at 10% p.a. from the date of purchase till the date of payment.
Apart from the above, Rs.4,000/- awarded as compensation for the harassment and inconvenience and Rs.1,000/- as cost of litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
As there is no allegation against Opposite Party No.3, complaint against Opposite Party No.3 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 and 2 are jointly and severally directed to replace the new Refrigerator along with fresh warranty by taking back the defective Refrigerator from the Complainant.
OR
In the alternative the Opposite Party No.1 and 2 shall refund the entire amount of Rs.13,890/- (Rupees thirteen thousand eight hundred and ninety only) along with interest at 10% p.a. from the date of purchase till the date of payment. Apart from the above, Rs.4,000/- (Rupees four thousand only) awarded as compensation and Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.3 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri. Ashith T. Shetty – Complainant.
Documents produced on behalf of the Complainant:
Doc.No.1 – 14.01.2009: Tax Invoice No.036346 for Rs.13,890/-.
Doc.No.2 – 14.01.2009: Customer copy.
Doc.No.3 – 20.11.2009: Letter of the Complainant to the Opposite Parties.
Doc.No.4 – 08.12.2009: Reply by the Opposite Party No.2.
Doc.No.5 – 04.09.2009: Receipt.
Doc.No.6 – 04.01.2010: Service record.
Doc.No.7 - : Postal receipts (3 in numbers).
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.R.Soloman – Branch Commercial Manager of the Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:31.08.2010 PRESIDENT
