Haryana

Karnal

473/2012

Bimla Devi W/o Naresh Kumar - Complainant(s)

Versus

Sharama Refrigeration., Voltas Ltd - Opp.Party(s)

Vishal Goel

20 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.473 of 2012

                                                               Date of instt. 27.09.2012

                                                               Date of decision: 8.09.2015

 

 

Bimla wife of Sh.Naresh Kumar, Proprietor M/s Bimla Icecream Parlour, Opp.Thana Civil Lines, Ambedkar  Chowk, GT Road, Karnal..

                                                             ……….Complainant.

                             Versus

 

1. Sharma Refrigeration, shop No.16-17, Gurudwara Market,Model Town, Karnal through its Proprietor Sh.Rajiv Sharma.

2.Voltas Ltd. UPBG, A-43, Mohan Cooperative, Industrial Estate, Mathura Road, New Delhi through its Manager.

 

                                                           ……… Opposite Parties.

 

                    Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.     

 

 Present:       Sh.Vishal Goel Advocate for the complainant.

                   Sh.S.K.Bhargava Advocate for OP No.1.

                   OP No.2 ex parte.

 

ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act , 1986 (  hereinafter referred to as the Act)  on the averments that she was running Amul Ice-cream   Preferred Outlet  and earning her livelihood through the same.  She purchased  deep/chest freezer of   Voltas  make having model 98  L405 having  capacity of 400 litres  from Opposite Party ( in short OP) No.1 vide invoice No.2520 dated 15.4.2010 for an amount of Rs.24661/-.   The deep/chest freezer was purchased under “ Amul Scheme”   for ice cream only  and the same was used by her  at Ice Cream Parolour for that purpose.   Warranty for five years was provided by the Ops regarding the said freezer.  In the year 2010, some defect appeared in the deep freezer and the same was removed by OP No.1, after complainant got registered complaint with the OP No.2.  In the year 2011 also problem occurred in the deep freezer. The complainant got registered her complaint with OP No.2 and the defect was again removed by OP no.1. However, on 20.8.2012, deep freezer  stopped cooling, due to which Ice cream  i.e cups, bricks, candies and ice-cream cakes  kept therein had melt and the complainant suffered loss of Rs.3500/-. The complainant got registered complaint on the service centre of OP no.2 on 20.8.2012 bearing No. 12AU2002715. OP No.1 was also intimated about the defect. The OPs assured to check the deep freezer within a short period and repair the same, but none came for repairs. Thereafter, the complainant continued to get registered her complaints in the service centre of OP No.2, but   no heed was paid by the Ops to her complaints.  Thus, there was deficiency in services on the part of Ops which caused mental agony and harassment to the complainant apart from financial loss.

2                 On notice, OP no.1 put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that complaint is not maintainable; that complainant is estopped from her own acts and conduct from filing the present complaint;  and that the complainant is not a consumer as per definition of consumer provided under  section 2 (1) (d) (ii) of the Act as the complainant had purchased the freezer for earning profits i.e. for commercial purpose.

                   On merits, it has been submitted that no complaint regarding any defect in the deep freezer was ever made by the complainant to the OP No.1.  Even the specific defect allegedly occurred in the deep freezer has not been mentioned. It has further been alleged that it was clearly mentioned on the bill that service would be provided by the Company, therefore, if any defect occurred in the deep freezer, OP no.1 was not responsible for the repair. The other allegations made in the complaint have been denied.

3.                None appeared for OP No.2 and ex parte proceedings were initiated against it vide order dated 7.1.2013.

4.                In the evidence of the complainant, she filed her affidavit Ex.CW1/A and documents Ex.C1 and Ex.C2.

 

5.                In evidence of OP no.1, affidavit Ex.O1 of Rishi Sharma and copy of the bill/invoice Ex./O2 have been tendered.

6.                We have heard the learned counsel for the complainant and OP No.1 and have gone through the case file very carefully.

7.                There is no dispute between the parties regarding purchase of one deep freezer by the complainant from OP No.1 under Amul scheme and warranty period of the said deep freezer was five years.  The said deep freezer was manufactured by OP No. 2.  These facts stand established from the documents Ex.C1 and Ex.C2 also. The complainant in her affidavit Ex.CW1/F reiterated the allegations made in the complaint regarding the defect in the deep freezer and deficiency in services on the part of the OPs.

8.                The main thrust of the learned counsel for the OP No.1 is  on the arguments that deep freezer was purchased by the complainant for using the same at Ice Cream Parlour i. e. for commercial purposes, therefore, the complainant does not fall within the definition of consumer as provided under section 2 (1)(d) of the Act and as such the complaint is not maintainable.

9.                The argument advanced by the learned counsel for the OP No.1 cannot be accepted being legally not tenable. The complainant specifically pleaded in the complaint that deep freezer was purchased by her for the purpose of earning her livelihood by means of self employment as she was running the Ice Cream Parlour exclusively for earning livelihood.  Her affidavit Ex.CW1/A is also to the same effect. OP no.1 could not produce   any evidence, which may rebut the contents of the affidavit of the complainant regarding purchase of deep freezer for self employment to earn livelihood.  Moreover, there is nothing on the file from which even an inference may be drawn that the complainant had employed a number of persons for  running her Ice Cream Parlour. Therefore, under such circumstances, plea that deep freezer was purchased and being used for commercial purposes is not established.  Consequently, the complainant, falls within the definition of Consumer as provided under the Act and she is entitled to file the present complaint.  In this context reference with advantage may be made to the  judgments of Hon’ble National Commission in cases  Polymech Plast Machiens Limited and another Vs. Apple Plast Private Limited  2004(2) CPC 233 and  Larsen and Tourbo Ltd.Vs.KrishanKumar Dhankar and others 2009(1) CPC 461

10.               The complainant has specifically alleged in the complaint that the deep freezer  stopped cooling on 20.8n.2012.She also alleged that complaints were made to the Ops. The complaint number has also been mentioned. The complainant has filed her affidavit in support of such allegations. The  evidence of the complainant regarding defect in the deep freezer has not been  rebutted by any cogent evidence, therefore, there is no reason to disbelieve the same. The defect was not removed by Ops despite complaints.   Thus, there was deficiency in service on the part of Ops.

 

11.            In view of the foregoing discussion, we accept the present complaint and direct the Ops to    repair the deep/chest  freezer of the complainant  to the satisfaction of the complainant. It is further directed that if the said deep freezer is not repairable   then the Ops shall replace the same with a new one of the same value and model. The complainant shall also be entitled for a sum of Rs.5500/- for the mental agony and harassment suffered by her and litigation expenses. The Ops shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.  

 

Announced
dated:08.09.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

Present:        Sh.Vishal Goel Advocate for the complainant.

                   Sh.S.K.Bhargava Advocate for OP No.1.

                   OP No.2 ex parte.

 

                   Arguments in part heard. For remaining arguments, the case is adjourned to  8.9.2015.

 

Announced
dated:01.09.2015                                                                            

                                                                 (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )       (Smt.Shashi Sharma)    

   Member.                             Member.

 

Present:        Sh.Vishal Goel Advocate for the complainant.

                   Sh.S.K.Bhargava Advocate for OP No.1.

                   OP No.2 ex parte.

 

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:08.09.2015                                                                            

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma )       (Smt.Shashi Sharma)    

   Member.                             Member