Orissa

Rayagada

CC/44/2019

Shaik Mahabulla - Complainant(s)

Versus

Sri S.Panda Sri Laxmi Home - Opp.Party(s)

Self

25 Sep 2020

ORDER

DISTRICT   CONSUMER DISPUTES REDRESSAL COMMISSION,

POST  /  DIST: Rayagada,  STATE:  ODISHA,  Pin No. 765001.

                                                      ******************

C.C.case  No.       44         / 2019.                                    Date.    25     .09. 2020

P R E S E N T .

Dr. Aswini  Kumar  Mohapatra,                                     President

Sri Gadadhara  Sahu,                                                        Member.

Smt.Padmalaya  Mishra,.                                                Member

 

Shaik Mahabulla, S/O: Shaik Noor Mohammad, Pitala Street,     Dist:Rayagada   (Odisha). 765 001.                                    …. Complainant.

.

Versus.

1. The Manager, Sri Laxmi Home Needs,  Po/Dist: Rayagada(Odisha).
2. Sri Vipul Sabharwal, Vice President, Marketing and sales, Whirlpool of India Ltd., Plot No.A-4, MIDC, Ranjangaon, Taluka Shirur, Maharastra- 419204 (India).

… Opposite parties.

For the complainant: - Sri G.Sai Prasad, Rayagada

For the O.P No.1  .      :-    Set  Exparte..

For the  O.P. No.2:-Sri Hari Ram Kedia and Sri Anil Kumar Kedia, Advocates , Cuttack.

                                                JUDGEMENT.

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non  replacement of  defective   Whirlpool Refrigerator  which  was  found defecective during the warranty  period  for which  the complainant  sought for redressal of the grievances raised by the complainant.

On being Noticed, the O.P No.1   neither entering in to appear before the forum nor filed their  written version in spite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.  Observing lapses of around 1(One)year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.1. The action of the O.P No.1   is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.1   was  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

The O.P. No.2 appeared through their learned counsel  and filed   written  version refuting the allegation made against them. The O.P No.2  taking one and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.2. Hence the O.P No. 2  prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps appeared and filed their written version.  Heard arguments from the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

There  is no dispute that   the  complainant has purchased  Whirlpool  Refrigerator   having  its model No.14690 1c275 TCG4   on Dt. 12.1.2014   from the O.P. No.1  bearing    invoice  No.103 on Dt.11.01.2014  on  payment  of  consideration  a sum of Rs.22,600/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period. (copies  of the  bill    is in the file which is marked as Annexure-I ).

After  using  some  months i.e with in the warranty period  the complainant  has  shown  defective in the above set i.e. the compressor  of the Refrigerator did not function properly and developed a technical defect and at some time a unusual noise coming from the said Refrigerator as result  of which  the Refrigerator caught fire inside the chamber and completely destroyed. Hence   the complainant  approached the  service centre  situated at Rayagada(Odisha)  for its rectification.  But the   Service centre has not rectified the  same within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.P. No.1 in their written version contended and  vehemently argued that the present complaint is not maintainable  before the forum. We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.   After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.No.1   purchased from the  O.P.No.2  he is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   and even such  servicing  the same defects  persist  it   is deemed  to be a  manufacturing defect.   Hence the complainant is entitled to thoroughly  check up  of the  set   and   to  remove   the defects  of   the above set  with fresh warrantee .

It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh where in  observed  “The dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the  set, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was  not  done”.

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 2   on payment of consideration  an amount of Rs. 2,000/- on Dt. 30.06.2014 (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after using  some months for rectification of defects on Dt. 25.3.2015  handed over the same to the O.P. No.3 (service centre) but till  date the  complainant had  not received the same  from the O.Ps.  So  the complainant  purchased another mobile set from the market.

On perusal of the record we observed that  the complainant made several complaints with the O.Ps pointing out the defects  which goes on to show that  right from  the very beginning  the above set was not performing  well and continued  repeatedly to develop defects  resulting  in  non-performance which was intimated by the complainant.   Further we observed that  on repeated complaints made  by the complainant to the O.Ps neither the defects have been removed nor replaced  with a new  set. We observed  inspite of  required  services made  with in the  warranty  period  the above set could not be rectified.  We  hold   at this stage if the above set required frequent servicing then it can be presumed that it has a manufacturing defect. If a defective set  is supplied a consumer he  is entitled to get refund of the price of the  set or to replaced  with a new set and also the consumer concerned is entitled  and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the  above  vehicle which was purchased by the complainant which had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period.

             It appears that the complainant invested a substantial amount and purchased the above  set with an expectation to have the effective benefit of use of the mobile set. In this case the complainant was deprived of getting beneficial use   of the set and deprived of using the above set for such a long time and the defects were not removed by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.P No.1  is  liable.

To meet the  ends of justice  the following order is passed.

                                                ORDER.

            The  O.P. No.2  (Manufacturer) is directed to  replace the above set with a new one defect free  with fresh warranty  and  hand over the same  to the complainant  with in  one month from the date of receipt of this order.

            The  O.P. No.1 (dealer)  is ordered  to refer the matter to the O.P. No.2 for early  compliance of the above order. Parties are left to bear their own cost.

            Dictated  and corrected by  me.

            Pronounced on this 25^th. day of September, 2020

Member.                                  Member                                               President.