DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 30^th day of January, 2009.

 Present : H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.64/2009

V.K. Lakshmanan

S/o. Kunhipanicker

Sree Krishnalayam

Kottapallam

Akalur

Edathara

Palakkad. - Complainant

(Adv.Bejoy.N.V)

V/s

1. Next Retail Shop

Rep. By its Manager

Soorya 11/191(2)

Soorya City Building

G B Road

Palakkad

2. Next Retail India Ltd

First Floor, Shiv Ashish

Sakinaka

Behind Lathia Rubber

Andheri-Kurla Road

Anderi East

Mumbai – 400 072 - Opposite parties

O R D E R

By Smt. H.Seena, President

Complainant is running a small shop for selling milk, curd and cool drinks etc for livelyhood. Complainant purchased a fridge with stabilizer for Rs.9,890/- from the 1^st Opposite party on 26/02/2009. It carries a warranty for 1 year and the same was installed on the date of purchase itself. After installation complainant noted that the fridge was not functioning properly. The same was informed to the 1^st opposite party's staff. A technician from the 1^st opposite party shop came and repaired the fridge. Even after repair the fridge functioned only for a day. On the very next day itself complainant complained to the 1^st

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opposite party that the defect still exists. According to the complainant the fridge was having serious manufacturing defects and the defect occurred within the period of warranty itself. Moreover the technicians who came to repair has stated that compressor and some parts of the fridge supplied are old and the fridge is unfit for use with the said parts. 2^nd opposite party is the manufacturer of the fridge. 1^st opposite party was not ready either to replacae the fridge with new one or to refund the amount paid. A lawyer notice dated 22/04/2009 was sent to the 1^st opposite party for which there was no reply. Hence the complainant prays for an order directing the 1^st opposite party to replace the fridge with new one and claims a compensation to the tune of Rs.40,000/-

Both opposite parties were set ex-parte.

The evidence adduced by the complainant consists of the chief affidavit and Exhibits A1 to A3. Expert commission report marked as Exhibit C1.

Now the issues for consideration are:

1. Whether the fridge supplied to the complainant is a defective one?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. What is the reliefs and costs that the complainant is entitled to?

Issues 1 & 2

The case of the complainant is that the fridge purchased by the complainant from the 1^st opposite party and manufactured by the 2^nd opposite party turned out to be a defective one within the period of warranty itself. Purchase of the fridge by the complainant from 1^st opposite party is proved by Exhibit A1, bill dated 26/02/2009. Owners manual and warranty card is marked as Exhibit A2. Even though the period of warranty is not seen to be stated in the warranty card, as the defect noted is immediately after the purchase, it can be presumed that it is within the period of warranty. The grievance of the complainant is duly informed to the 1^st opposite party by way of Exhibit A3, Lawyer notice dated 22/04/2009.

'Defect' as defined U/s 2 (1) (f) of Consumer Protection Act means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is

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required to be maintained by or under any law for the time being in force or under any contract express or implied in any manner what so ever in relation to any goods. Defective fridge was examined by an expert Commissioner and the report was marked as Exhibit C1. Commissioner has clearly stated in the report that the compressor was not in a working condition and there is no cooling effect. Hence it is clear that the fridge supplied is a defective one. Further no contrary evidence is adduced by the opposite parties also. 2^nd opposite party being the manufacturer is also liable to compensate the complainant.

In view of the above circumstances of the case we allow the complaint. Opposite parties 1 & 2 are jointly and severally directed to pay the complainant an amount of Rs.9,890/- together with an amount of Rs.3,000/- as compensation and Rs.2,000/- as cost of the proceedings. On receipt of the full amount the fridge shall be handed over to 1^st the opposite party. Order shall be complied within 1 month from the date of receipt of order failing which the whole amount shall carry interest at the rate 9% per annum from the date of order till realization.

Pronounced in the open court on the 30^th day of January, 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Cash memo of next Retail Shop dated 26/02/09

2. Ext. A2 – Owners manual

3. Ext. A3 - Acknowledgement card

Exhibits marked on the side of the Opposite Party

Nil

Forums Exhibits

Exhibit – C1 -Commission Report dated 26/10/2009

Date of fair copy:15/02/2010 Forwarded/By Order

Date of despatch Senior Superintendent