E

O R D E R

Sri. George Baby (President):

                        Thiscomplaint is filed u/s 12 of the Consumer Protection Act 1986 by the complainant for getting certain reliefs from this Forum.

                    2. The case of the complainant is short as follows:- The complainant has purchased a front load washing machine from Attinkara Electronics, Chengannur on 25/10/2016 for the total sale consideration of Rs. 23,000/-.  The said washing machine is manufactured by the 2^nd opposite party and they had provided 3 years comprehensive warranty for the machine and 10 years, warranty for the motor of the machine.  Four months prior to the institution of this complaint it has noticed by the complainant that metal part of the machine was rusted and also the paint peeled off. The complainant had registered a complaint in this regard to the 2^nd opposite party through their helpline number 4266581402.  Then the authorised person of the 2^nd opposite party contacted the complainant from Thiruvalla and directed him to send photographs.  The complainant did so.  But there after no proper reply was from the part of the 2^nd opposite party and then once again the complainant contacted the 2^nd opposite party and on that occasion it has come to know that his complaint was dismissed by the company on the finding with “Customer misuse”.  Subsequently the complainant sent e-mail to the head office of the 2^ndopposite party and in response to that they had contacted the complainant and agreed to take back the washing machine for Rs. 19,889/- which is the amount after the depreciation of Rs. 3,110/-.  The complainant was not amenable for the same and he insisted for getting the warranty benefits.  But the 2^nd opposite party denied the warranty benefits and hence the complainant approached this Forum. 

3.This Forum entertained the complaint and issued notice to the opposite parties.  Even through 1^st opposite party had accepted the notice from this Forum the 1^stopposite party did not come forward to context the matter.  The 2^nd opposite party appeared and filed their version. 

4. The contentions of the 2^nd opposite party is as follows:- The complaint is not maintainable either in law or on facts.  This Forum has no jurisdiction to entertain and adjudicate the dispute in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act 1986.  It is admitted that the complainant had purchased Samsung front loading washing machine on 25/10/2016 model no. WF600BOBTWQ/TL1 serial No.03AK5PB800151Y at a consideration price of Rs. 23,000/-.  The complainant had logded a complaint at 2^nd opposite party’s service center and proper service was provided to the complainant.  A technician visited the complaint’s house to rectify the defects.  After inspecting the defects in the washing machine the service center informed that the defects in the said machine had occurred due to physical damages and rusting due to Kerala Floods.  There were no mechanical defects in the machine.  The defects if any had occurred due to mishandling and physical damage caused to the washing machine.  That the company representative offered to refund Rs. 19889.73/- after deduction of the damaged part cost which was denied by the complainant and thus refund could not be processed.  The problem in the washing machine due to the ingression and physical damages caused to the washing machine.  And the service request was raised by the complainant during July – August 2018.  When there were severe floods in Kerala.  Normally defects and issues arising out of physical damage are not covered under warranty but as a goodwill gesture and keeping in mind the fact that there were floods in Kerala the company also offered to waive off the service fees and informed the complainant that he can only pay the part cost.  Again in case any part are not available with the service center, as per company policy  and as per warranty terms and conditions the company offers depreciate refund of the product cost.  In this case also company offered the same.  But the complainant denied such offer and demanded full refund or replacement which was not as per warranty terms and conditions.  The 2^nd opposite party is willing to carry out the necessary repairs and replacement as per the terms and conditions of the warranty manual.  If the defects are noticed that will not automatically come within the meaning of manufacturing defects.  The complainant has not approached this Forum with clean hands.  The opposite party has not committed any unfair trade practice or deficiency in service.  Hence the 2^nd opposite party pray to dismiss the complaint with their cost.

5. On the basis of the complaint version and records before us we framed the following issues for adjudication.

(1). Whether the complainant is a consumer?

(2). Whether the complaint is maintainable before this Forum.

(3). Regarding relief compensation and cost.

           6. In order to prove the case of the complainant, the complainant had filed proof affidavit in lieu of his chief examinationand examined him as PW1 for substantiating the complainant case. PW1 has produced 5 documents and they were marked through PW1 respectively as Ext. A1 to A5.  No evidence was adduced by the opposite parties.  The 1^st opposite party remained ex-parte, the 2^nd opposite party only contested the matter.  After the closure of evidence we heard both sides. 

7. Point No. I and II:- For brevity and for sake of convenience we would consider Point no. I &II together. The 2^nd opposite party had adopted a contention that this Forum has no jurisdiction to entertain and adjudicate the issues involved in this case and the complainant is not a consumer.  The 2^nd opposite party has not specifically stated anywhere in the version as in evidence how this Forum has lacks jurisdiction to entertain this complaint and also not attributed the point how the complainant go outside the purview of Consumer Protection Act.  While we analyzing the said issue it is pertinent to note that the 2^nd opposite party has admitted the purchase of Samsung front loading washing machine on 25/10/2016 model no. WF600BOBTWQ/TL Serial no. 03AK5PBH800151Y at a consideration of Rs. 23,000/- by the complainant.  It is sufficient enough to come a safe conclusion that the complainant is a Consumer envisaged under Consumer Protection Act 1986 and in the said circumstances the complaint filed by the complainant is perfectly maintainable before this Forum and accordingly Point No.I and II found in favour of the complainant. 

8.Point No.3:- The specific allegation of the complainant who is examined as PW1 that he had noted prior to the institution of this concept that the washing machine became rusted and its paint was peeled off and the matter was properly, intimated to the opposite parties.  But none of them had taken any steps to redress his grievances in time bound manner.  In the first instance the company had rejected the complaint of PW1 on the ground that it is a “Customer misuse”.  Thereafter the complainant preferred a complaint to the company through e-mail.  Then the company had agreed to take back the washing machine on payment of Rs. 19,889.73/- to the complainant i.e., the amount after calculated the depreciation in the tune of Rs.3,110/-. The complainant was not amenable for such offer.  PW1 deposed that the alleged washing machine had 3 year comprehensive warranty and 10 year warranty for motor and hence he is entitled to get the warranty benefits.  In order to connect that Point the 2^nd opposite party had taken the contention that defects and issues in the washing machine arising out of physical damage and the same is not covered under warranty.  Undoubtedly we can infer that the opposite party has not produced any cogent or convincing evidence to prove the said aspect that the defects of the machine was caused only due to the water ingression to the washing machine and that too by the mishandling of PW1.  In this context it is helpful to refer A2 photographs.  From the said photographs we can see that the washing machine is rusted A2 photographs were marked without any objection.  In fact the 2^nd opposite party had took the specific contention that the defects in the washing machine was happened due to the water ingression and also due to the physical damage but the opposite party has ultimately failed to prove that contention with any evidence.  Moreover the 2^nd opposite party also admitted the defects in the washing machine Ext. A3 series of mail communications revealed the fact that PW1’s washing machine is in defective condition Ext. A4 warranty card is sufficient to prove that the said washing machine had 36 month comprehensive warranty.  According to Ext. A1 the purchase was on 25/10/2016.  Ext. A3 commutations are sufficient to us to come a safe conclusion that the dispute was started in September 2018 between PW1 and the 2^nd opposite party with regard to the alleged washing machine. The opposite party has not a definite case that there was no defects in the washing machine or the defects were not acted positively to redress the grievance of PW1 and they had protracted the matter in one or other reason and that we have considered view that the same is clear deficiency in service.  As an ordinary consumer like PW1 was run pillar to post to redress a simple complainant of his washing machine and the same has not yield any positive result till this time.  In the said situation PW1 is entitled to get relief from this Forum and Point No.3 is also found in favour of the complainant. 

9. In the result this complaint is allowed and we pass the following order.

          (1) The 2^nd opposite party is directed to take back the washing machine of

the complainant having its model no.WF600BOBTWQ/TL purchased

on 25/10/2016 for Rs. 23,000/- and replace another washing

machine of same quality and price within one month from the date of

receipt of this order to the complainant failing which the 2^ndopposite

party is directed to pay Rs. 23,000/- (Rupees Twenty Three Thousand

only) to the complainant with 10% interest from the date of receipt of

this order onwards.

(2) The opposite parties are directed to pay a compensation of Rs. 5,000/-

(Rupees Five Thousand only) with cost of Rs. 2,000/- (Rupees Two

Thousand only) to the complainant with one month from the date of

receipt of this order, otherwise the said amount carries the interest at

the rate of 10% interest from the date of receipt of this order onwards.                         

     Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 16^thday of September, 2020.

(Sd/-)

George Baby,

                                                                                         (President)

Smt. N. ShajithaBeevi (Member)   :  (Sd/-)

Sri.NishadThankappan (Member-II :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1: Dr. Ajith Abraham Thomas

Exhibits marked on the side of the complainant:

A1: copy of invoice dated: 23/10/2016.

A2: Photos (2Nos.)

A3: Copy of the email details.

A4: warranty card.

A5: copy of SMS dated: 26/07/2018.

Witness examined on the side of the opposite parties:Nil.

Exhibits marked on the side of the opposite parties: Nil.

Copy to:-

                   (1) Dr. Ajith Abraham Thomas,

Puthenpurayil House,

Othara West PO – 689551,Pathanamthitta.

                   (2) N.J. Electronics,

          Relish Tower, M.C. Road, Thiruvalla.

               (3) Samsung India Electronics Pvt. Ltd.,

A25, Ground Floor, Front Tower,

Mohan Co-operative Industrial Estate,

          New Delhi – 110044.

                  (4) The Stock File.