Orissa

Rayagada

CC/396/2015

Sri Tunu Padhi - Complainant(s)

Versus

Proprietor Jain Enterprises - Opp.Party(s)

Self

05 May 2016

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA

         

                                            C.C. Case  No.396 /2015.

P R E S E N T .

Sri Pradeep Kumar Dash, LL.B,                             President.

Smt. Ch.  Nirmala Kumari Raju, LLB,                    Member

Sri Tunu Padhi @ Prafulla Kujmar Padhi, S/o late N.Padhi, At/Po K.Singpur, Dist. Rayagada,                                                                                                                                                                                                                    ……Complainant

                                                            Vrs.

1.         Proprietor, Jain Enterprises, Axis Bank Lane, New Colony,    Po/Ps/Dist.      Rayagada.

2.         Voltas Limited, Voltas House, “A” Block, Babasaheb Ambedkar       Road,Chinchopokli,Mumbai-400033.

                                                                                                            ……...Opp.Parties

Counsel for the parties:

For the complainant: Sri R.K.Padhy & Associate Advocates, Rayagada

For the O.Ps: Sri P.K.Tripathy & Associates Advocate, Rayagada.

 

                                                              JUDGMENT

                        The facts of the complaint  in brief is that,  the complainant has purchased  one  Voltas  Refrigerator  of 500 Ltrs  on   dt.31.03.2015 from the authorized dealer - O.P. No.1 with a  consideration of Rs.30,000/- vide Money Receipt No.4375  . The guarantee of the refrigerator was given by the O.p 1  for one year from the date of purchase.  After few days of its purchase   the complainant noticed  some  defect  like   not keeping the requisite cool  for which  the complainant reported the  matter  to O.P.No. 1 who sent the service personnel  and after through checking the engineer said that the fridge is a defective one and is not repairable  by him  and the same  is to be sent to the Company’s Service Centre. So the complainant requested the O.p 1  to replace the defective fridge with a new one  since the same is  manufacturing fault and the fault is detected within the guarantee period but the O.p 1 flatly denied to replace the same . Hence, prayed to direct the O.p 1 to refund the cost of the fridge of Rs.30,000/-  and pay compensation of Rs.30,000/- for mental agony and cost of litigation of Rs.5,000/- and  any other relief as the forum deems fit and proper. Hence, this complaint.

             On being  noticed   the opposite parties  appeared and the   filed   written version. It is stated by the O.ps that the complainant is not a consumer  under C.P.Act,1986 in view of the fact that he was using the 500 Lt. Chest Freezer for commercial purpose and the complaint petition is liable to be rejected. The petition is barred by law of limitation and also not maintainable on the ground of mis-joinder  and non joinder of party as the authorized service provider of Voltas Ltd. at Rayagada  has not been made as a party . Basing on the complainant the technician had gone to the shop and requested   the complainant to sent it to the authorized service station as nitrogen gas was required for flashing and nitrogen gas is not transferable due to safety persecution and since  it is kept reserve at the authaorised service station, therefore the complainant had to sent the freeze  to the service centre  but surprisingly the complainant without sending it to the service centre has filed this case making frivolous allegation against the O.ps. Since  the complainant has not come forward with clean heart, mind and has not  suppressed the material facts   and mislead  and misguide the forum, the complaint petition is liable to be dismissed.

                        Heard and perused the documents filed by the parties. The Ld. Counsel for the complainant has argued that the O.ps had sold a defective freeze to the complainant and claimed that the O.ps caused deficiency in service and deprived of the complainant of enjoyment of the freeze for such a long time and caused mental agony and harassment to the complainant. On the other hand, the Ld. Counsel for the O.ps argued that the complainant is not a consumer  under C.P.Act,1986 in view of the fact that he was using the 500 Lt. Chest Freezer for commercial purpose and the complaint petition is liable to be rejected. Bare reading thereof would show that the freeze carried a warranty of one year and petitioner  intimated about the defect  in the freeze  within the warranty period.

                        For better appreciation of  the case , we relied on the decision in Amterex Ambience Ltd. Vrs. M/s Alpha Radios and Another, I(1996)CPJ 324(NC),  the Commission held that the purchaser of machinery will certainly be a consumer in respect of defect in machinery during the period of warranty. Since  the defect in machine in question was brought to the notice of petitioner within three months period of purchase the respondent will be a ‘consumer’ even though the machine was purchased for commercial purpose.

                        In view of the above decision of the Hon’ble Apex Court of Law, the complainant is a consumer and the grievance   of the complainant is accepted.

                        Now we have to see whether there was any negligence on the part of the O.ps in treating the complainant as alleged ?

                        We perused the  papers filed by the complainant for replacement of new freeze from the very beginning. In spite of visiting of service personnel of the O.ps the defective freeze of the complainant could not be rectified. We hold at this stage if the freeze required frequent servicing then it can be presumed that it is defective one. If a defective t5reeze is supplied a consumer is entitled to get refund of the price of the article or to replace a new freeze and also the consumer  concerned is entitled  and has a right to claim compensation and cost  to meet his mental agony, financial loss,.  In the instant case, as it appears that the freeze which was purchased by the complainant had developed defects and the O.ps were unable to restore its normal  functioning during the warranty period.  It appears that the complainant  has invested a substantial amount and purchased the refrigerator with an expectation to have the effective benefit of use of the article. In this case the complainant was deprived of getting beneficial use of the article and deprived of using the refrigerator for  such a long time and the defects were not removed by the O.ps who could know the defects from time to tome from the complainant.

                        Hence, in our view the complainant has right to claim compensation to meet his mental agony, financial loss. Hence, it is ordered.

                                                            ORDER

                        In view of the aforesaid discussion, the  Opposite Parties  are     directed to repair the  refrigerator and  give fresh warranty     and pay compensation of Rs.2,000/-  for mental agony undergone by the complainant and cost of Rs.500/- to the complainant within one month  of receipt of this order, failing which the O.Ps are liable to pay  penal interest  @  12%  p.a. on the above awarded amount till  the date of payment.

                        Pronounced in open forum today on this 21^st  day of February,2016 under the seal and signature of this forum.

                         A copy of this order as per the statutory requirements , be forwarded to the parties    free of charge.

 

            Member                                                                       President

Documents relied upon:

By the complainant:

1. Xerox copy of  Retail Invoice
2. Xerox copy of warrant card.

By the Opp.Party: Nil

 

                                                                                      President