HYDERABAD

F.A. 155/2007  against C.C 986/2005, Dist. Forum-I, Visakapatnam.      

Between:

1. Eureka Forbes Ltd.

49-24-6, Lalitha  Mandan Mansion

Madhuranagar, Visakapatnam.

Rep. by its Company Secretary

V. Natarajan,

S/o. Late D. Venkatraman.

2. Eureka Forbes Ltd.

27-1-52, C/o. R.V.V.

Satyanarayana Building

Sree Nagar, Gajuwaka

Visakapatnam.  

Rep. by its Company Secretary

V. Natarajan,

S/o. Late D. Venkatraman.                        ***                         Appellants/

                                                                                                          Ops. 

And

Sirapanasetti Trinadh

D.No. 30-57-9

Hospital Road

Kanithi Colony

Vadlapudi Post

Visakapatnam-46.                                       ***                         Respondent/

                                                                                      Complainant.

Counsel for the Appellants:                        M/s. C. R. Sridharan

Counsel for the Resp:                                 P.I.P.  

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                            SRI R. L. NARASIMHA RAO, MEMBER

WEDNESDAY, THIS THE TWENTY THIRD DAY OF DECEMBER THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                This is an appeal preferred by  opposite party,   manufacturers  of  water filters  against the order of the Dist. Forum  directing them to replace the membrane filter  and other filters  within one month  and on failure to replace, refund  Rs. 12,500/- on return  of the water filter by the complainant  besides costs of Rs. 1,000/-.

2)                 The case of the complainant in brief is that  he purchased a  water filter  on  17.11.2004  from the appellants for Rs. 12,500/-.  When it was found defective, he complained to them  orally on 30.8.2005  and later in writing  on  13.12.2005.  The service engineer of the appellant examined the filter and found that it was damaged.   He informed that the filters have to be replaced.  Despite his legal notice Dt. 10.11.2005  they did not replace.  The trouble started within the warranty period amounting to  deficiency in service.  Therefore he sought for  a direction to replace  the membrane filter and other filters  and costs.

3)                The appellant did not choose to contest despite  service of notice and therefore they were set-exparte. 

4)                The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A7 marked.

5)                The Dist. Forum after considering the evidence placed on record  directed the appellant  to replace the filters free of cost and if  for any reason  it could not replace the filters  pay  Rs. 12,500/-  and take return of the filter purchased by him together with costs of Rs. 1,000/-. 

6)                Aggrieved by the said order, the appellant preferred the appeal contending that the Dist. Forum did not  consider the fact that  they have changed the filters on  23.11.2005  and the said fact was suppressed  and besides that warranty excluded to the consumable items like filters etc., and therefore the order is bad under law.  Along with the appeal they have filed the brochure containing the conditions,  daily activity report  showing  change of filters etc. 

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                At the outset, we may state that there is no dispute  that the complainant had purchased a water filter  on 17.11.2004  for Rs. 12,500/- manufactured by the appellants.     When  the complainant alleges that when it was not working well he has informed to the appellant evidently under Ex. A2.  Even for the legal notice issued under Ex. A4  acknowledged by the appellants under Exs. A6 & A7  they did not give any reply.   Even for the complaint filed before the Dist. Forum they did not choose to contest.    They did not assign any reason as to why  they could not contest  before the Dist. Forum.   The documents filed by the complainant would undoubtedly  show that  despite  repeated complaints  the appellants did not rectify or even choose to give reply as to why it could not rectify.  

9)                In the appeal  belatedly  they alleged that  there is no warranty for these  consumable items.  Even assuming without admitting that the filters were not working  they cannot be replaced,  even then   they changed  the filters on 23.11.2005 and this fact was suppressed  and therefore the complaint was liable to be dismissed.    It is no doubt true that the brochure marked as Ex. B1  in the appeal, there was  a mention  that  “Consumable items like sediment, filter, reverse osmosis/membrane and activated carbon which are subject to normal wear and tear  in the course of use  are not covered by the warranty.”  Obviously, filters and other parts of water filter could not have  been  damaged  within  a  few months.  It cannot be held that  it was normal wear and tear as mentioned in the conditions. 

10)              For the first time they alleged in the appeal that they have changed the filters subsequent to filing of the complaint on 23.11.2005.   If that were to be true, it could have informed the Dist. Forum  that the filters were replaced.  There is no reason to replace if it is not enjoined on their part.     It is a belated claim.  A long silence  on the part of appellant would undoubtedly invites an adverse inference.  The consistent conduct of the appellant shows that  they knew that the water filter was not in proper working order  and therefore they did not choose to reply  or repair.    Now the unit that was purchased by the complainant was four years old and all through has  been bearing with this defective water filter.   Since the appellants were guilty of  their latches, we are of the opinion  that it is too late a day to contend that they got it repaired  and they are not liable.    We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.  The order of the Dist. Forum is confirmed. 

11)               In the result the appeal is dismissed.  However, no costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

                                                          Dt.      23.  12.  2009.

*pnr

“UPLOAD – O.K.”