Tamil Nadu

South Chennai

CC/38/2016

M/s.S.Samuel - Complainant(s)

Versus

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

K.Karuppaiah

17 May 2019

ORDER

                                                                        Date of Filing  : 25.01.2016

                                                                          Date of Order : 17.05.2019

                                                                                  

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.38/2016

DATED THIS FRIDAY THE 17^TH DAY OF MAY 2019

                                 

S.Samuel,

S/o. Late S. Stanislaus,

Flat No.B3, Third Floor, West Hills Apartment,

Nos. 7 & 8, Reddykuppam Road,

Saidapet,

Chennai – 600 015.                                                        .. Complainant.                                             

 

          ..Versus..

1. Bijon Nag,

Executive Chairman,

IFB Industries Limited,

No.14, Taratolla Road,

Kolkata – 700 088.

 

2. The Authorized Signatory,

IFB Industries Limited,

(Home Appliances Division),

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

Vadapalani,

Chennai – 600 026.                                                ..  Opposite parties.

 

For the complainant                              : Party in person

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

                                                                 another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to refund the amount of Rs.4,944/- collected by the opposite parties from the complainant for the Maintenance Contract and to pay a sum of Rs.1,00,000/- towards compensation for hardship, mental agony, loss and inconvenience with cost to the complainant.

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

The complainant submits that after purchasing the IFB Washing machine on 26.05.2015 and entered into an Annual Maintenance Contract with the opposite parties for 2 years and paid a sum of Rs.4,944/- from 26.05.2016 to 25.05.2017, the said washing machine went on repair on 06.11.2016 and the complainant made a complaint on 07.11.2016 through email.  After one week only, the opposite party deputed a technician for repair the washing machine.  The complainant submits that as per the Annual Maintenance Contract, it is the usual practice that the opposite party shall depute a technician within 48 hours.  The technician also has attended the fault and was not able to find out what is the exact defect and has not set right the machine.  The opposite party has miserably failed to give the Job Card also.   There is no response from the Franchisee Manager and the Manager, IFB Chennai.  The opposite parties gave an evasive reply through email and never deputed the technicians in time as per the Annual Maintenance Contract. The  complainant submits that the technicians were also not provided with required spare parts resulting, the fault of the machine was complicated which leads burning and smoke was coming out of the machine which was also duly informed to the opposite party on 25.11.2015.  The burning smell and smoke caused utter shock and dismay to the complainant and his wife and threatening to their life and was avoided by switch of the machine and while opening the washing machine, the clothes got locked inside the washing machine caused great mental agony to the complainant.  The complainant once again contacted the Chennai Manager and Franchisee Manager and informed the fact over phone.  The opposite parties has sent a technical person on 27.11.2015 who helped the complainant to remove the clothes from the washing machine and informed that the automatic lock of the door was burnt caused the smoke.  The technician assured the complainant for due replacement of the said washing machine.  But none of them turned up and serviced the machine against the Annual Maintenance Contract and also within the warranty period.   Hence, the complainant issued legal notice dated:15.12.2015 for which, the opposite parties has not sent any reply.  The act of the opposite parties amounts 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 denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 & 2 state that the complainant wantonly and deliberately suppressed the material facts and filed this case claiming imaginary compensation.   The opposite parties 1 & 2 state that as per the Annual Maintenance Contract (AMC), Terms and conditions clearly provides in para 10 that all disputes the jurisdiction is within the courts of Kolkata.  The opposite parties 1 & 2 state that as per the Annual Maintenance Contract, there is no time limit provided for repairs and availability of spare parts.   The opposite parties 1 & 2 state that the period of dispute starts from 07.11.2015, when he first made a complaint on 25.11.2015 and thereafter, legal notice issued on 15.12.2015 are all within 40 days, within the period the engineers visited twice.  The AMC not applicable for the voltage fluctuation.   The opposite parties 1 & 2 state that during the period of November & December, there was devastating rains in the city resulting shortage of manpower.  The opposite parties 1 & 2 state that their technical personal spoken to the complainant on 28.12.2015 and offered to set right the machine which was refused by the complainant.   Therefore, there is no deficiency in service on the part of the opposite parties and hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and document Ex.B1 alone is marked on the side of the opposite parties 1 & 2.

 

4.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.4,944/- collected by the opposite party towards maintenance as prayed for?
2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, hardship, loss and inconvenience with cost as prayed for?

5.      On point:-

Both parties filed their respective written arguments.  Heard the complainant and the opposite parties’ Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that after purchasing the impugned IFB Washing machine on 26.05.2015, entered into an Annual Maintenance Contract with the opposite parties for 2 years and paid a sum of Rs.4,944/- which is valid from 26.05.2016 to 25.05.2017 as per Ex.A1.  Further the complainant contended that the said washing machine went on repair on 06.11.2016 and the complainant made a complaint on 07.11.2016 through email as per Ex.A2.  After one week, the opposite party deputed a technician for repair.   As per the Annual Maintenance Contract, it is an usual practice that the opposite party shall depute a technician within 48 hours.  The technician also has attended the fault and was not able to find out what is the exact defect and has not set right the machine.  The opposite party has miserably failed to give the Job Card also.   There is no response from the Franchisee Manager and the Manager, IFB Chennai.  The opposite parties gave an evasive reply through email dated:07.12.2015 as per Ex.A4 and never deputed the technicians in time as per the Annual Maintenance Contract.   

6.     Further the contention of the complainant is that the technicians were also not provided with required spare parts resulting, the fault of the machine was complicated which leads burning and smoke was coming out of the machine which was also duly informed to the opposite party on 25.11.2015 as per Ex.A3.  The burning smell and smoke caused utter shock and dismay to the complainant and his wife and threatening to their life and was avoided by switch off the machine and while opening the washing machine, the clothes got locked inside proves the deficiency in service.  The complainant once again contacted the Chennai Manager and Franchisee Manager and informed the fact over phone.  The opposite parties has sent a technical person on 27.11.2015 who helped the complainant to remove the clothes from the washing machine and informed that the automatic lock of the door was burnt and caused the smoke.  The technician assured the complainant for due replacement of the said washing machine.  But none of them turned up and serviced the machine against the Annual Maintenance Contract and also within the warranty period  proves the deficiency in service.   Hence, the complainant issued legal notice as per Ex.A6 dated:15.12.2015 for which, the opposite parties has not sent any reply.  The complainant is claiming a sum of Rs.4,944/- paid towards Annual Maintenance Contract and a compensation of Rs.1,00,000/- with cost.

7.     The complainant’s Counsel cited the decision reported in:

AIR 1975 GUJARAT

Between

M/s. Snehalkumar Sarabhai

-Versus-

M/s. Economic Transport Organisation and others

Held that

        “While parties can lawfully enter into an agreement to restrict a dispute to a particular Court having jurisdiction, that stipulation though valid cannot take way the jurisdiction of the Court which admittedly has jurisdiction.  The ouster clause can operate as estoppels against the parties to the contract.  It cannot tie the hands of the Court and denude it of the power to do justice.  It is no doubt true that ordinarily courts would respect the agreement between the parties which is born out of the meeting of their minds and out of considerations of convenience.  But the courts are obliged to do so in every case.  In a case like the present where the claim is of Rs.1,207.92 to oblige the plaintiff to go to Calcutta merely for the pleasure of respecting the stipulation embedded in the contract between the parties is to deny justice.  A new approach to this question deserves to be made for the ouster clause is calculated to operate as an engine of oppression and as a means to defeat the ends of justice for in a case like the present it would be oppressive to drive the plaintiff all the way to Calcutta to recover a small sum of Rs.1,208/-.  The costs of travelling and litigation will far exceed the stakes involved and even a rightful claimant would be obliged to abandon his claim rather than incur greater expenditure than the sum involved in order to seek redress.  In this back-drop the question assumes importance whether the stipulation to confine the jurisdiction in one of the Courts robs the excluded Court of its power to try the suit.  Now such a stipulation may be legal and binding to parties.   That however, does not mean that it divests the Court of its jurisdiction.  The plaintiff cannot insist that a Court other than the stipulated Court should try the suit.  But the Court on its part is not bound by the stipulation.  The stipulation can be ignored by the excluded Court which otherwise possesses jurisdiction if it is considered to be oppressive having regard to the surrounding circumstances including the stakes involved.  More particularly so when the defendant firm has its office and is doing business within the local limits of the Court and it would be unjust to enforce the stipulation against the plaintiff whilst it would not cause any real prejudice to the other side.   In such case, the Court will doubtless refuse to respect the contractual commitments made by the contesting parties.  In such circumstances, the Court should ignore the ouster clause and should exercise its jurisdiction.  The lower Court was, therefore, in error in denying a decree to the petitioner plaintiff on the ground that the Court had no jurisdiction”.

8.     The learned Counsel for the opposite parties 1 & 2 would contend that the complainant wantonly and deliberately suppressed the material facts and filed this case claiming imaginary compensation.   Further the contention of the opposite parties 1 & 2 is that as per the Annual Maintenance Contract (AMC), Terms and conditions Sl. No.10 which reads as follows:

10.   In case of any dispute, this contract is subject to jurisdiction of Kolkata courts only”.  

But it is not denied that all the transactions were carried out within this jurisdiction.   Further the contention of the opposite parties 1 & 2 is that as per the Annual Maintenance Contract, there is no time limit provided for repairs and availability of spare parts.   But on a careful perusal of Ex.B1, the terms and conditions, it is very clear that that within the reasonable time, proper service shall be was given by the opposite parties.   Further the contention of the opposite parties 1 & 2 is that the period of dispute starts from 07.11.2015, when he first made a complaint on 25.11.2015 and thereafter, legal notice issued on 15.12.2015 are all within 40 days within the period the engineers visited twice.  The AMC not applicable for the voltage fluctuation.  There is no deficiency in service on the part of the opposite parties.   But it is very clear that the opposite parties have not rectified the defects and serviced the machine properly.   The burning smell and smoke, locking of clothes inside the caused great mental agony which amounts to deficiency in service. 

9.     Further the contention of the opposite parties 1 & 2 is that during the period of November & December, there was devastating rains in the city resulting shortage of manpower.  But on careful perusal of Ex.A1, it is absolutely silent regarding the above facts.   Further the contention of the opposite parties 1 & 2 is that their technical personal spoken to the complainant on 28.12.2015 and offered to set right the machine which was refused by the complainant.   But there is no iota of evidence in this case to prove the same. Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall refund a sum of Rs.4,944/- being the Annual Maintenance Cost with a compensation of Rs.10,000/- for mental agony and cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.4,944/- (Rupees Four thousand nine hundred and forty four only) being amount paid towards maintenance contract and to pay a sum of Rs.10,000/- (Rupees Ten thousand only)  towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five 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 17^th day of May 2019. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	26.05.2015	Copy of Maintenance Contract entered into between the complainant and the opposite parties
Ex.A2	07.11.2015	Copy of email by the IFB Service informing the Ticket No. for the complaint dated:06.11.2015
Ex.A3	25.11.2015	Copy of the email sent by the complainant to the Customer Services of the opposite parties
Ex.A4	07.12.2015	Copy of the reply mail from IFB Customer service to the email of the complainant dated:25.11.2015
Ex.A5	15.12.2015	Copy of print out of email sent by the complainant to customer service of the opposite parties
Ex.A6	15.12.2015	Copy of legal notice issued by the complainant to opposite parties
Ex.A7	17.12.2015	Copy of postal acknowledgment card signed by the 2nd opposite party
Ex.A8	21.12.2015	Copy of postal acknowledgment card signed by the 1st opposite party
Ex.A9	02.01.2016	Copy of bill for the purchase of the new washing machine

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-

Ex.B1

Copy of Annual Maintenance Contract (AMC)

 

 

MEMBER                                                                                PRESIDENT