BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th April 2014
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.195/2013
(Admitted on 20.7.2013)
Smt. Josephine Towers,
Aged 82 years,
Widow of late Louis Towers,
Retired Bank Employee Retreat,
2nd Cross, Lower Bendore,
Mangalore 575 002. …….. COMPLAINANT
(Complainant: Appeared in person)
VERSUS
1. Tekcare India Private Ltd.,
15 K.M. Stone Aurangabad,
Paithan Road,
Chitegaon Village,
Paithan Taluk
Aurangabad 431 105,
Maharastra, India.
Local Office in Mangalore
Nano Tech, Customer Care Centre,
City Centre Building,
Opposite Hotel Roopa,
Behind South India Bank,
Balmatta Road,
Mangalore-575 001.
2. Local Representative: M/s HVT Appliance,
S.R. Complex Near Dena Bank,
Bendore Well,
Mangalore- 575 002. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1: Sri.Bharathraj Hegde)
(Opposite Party No.2 :Exparte)
ORDER DELIVERED BY HON’BLE MEMBER
SMT.LAVANYA M. RAI:
I. 1. This complaint is filed under Section 11 and 12 of the Consumer Protection Act alleging defect in goods as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, she had purchased Kelvinator Fridge for Rs.15,000/- on 1.5.2012 through local representative of M/s. HVT Appliances at Mangalore, along with invoice and guarantee card for one year for free service and an additional four years for the compressor. The complainant further submitted that within one year from the Guarantee Card, the material defect was noticed in the refrigerator, the door was defective, in that it did not close properly, so that the food kept in the fridge did not get frozen or preserved. Thereafter the complainant, complaints to the local service dealer attempts to repair the door, and attended to five occasions, apart was replaced at cost of Rs.650/- on 21.6.2013 and the local representative suggested that the door requires to be replaced as it is beyond repair and the complainant was not interested the replacement of a part, but wanted as she was entitled to for the replacement of the defective fridge. But the opposite party failed to rectify the defect. The complainant issued a registered notice on 6.6.2013 for replace, but opposite party not replied the same which amounts to deficiency in service. Hence the complainant filed present complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties directed to refund the cost of Rs.15,000/- of the refrigerator with 12% interest per annum from the date of purchase till the date of payment along with cost of the proceedings.
II. 1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D. Opposite Party No.1 appeared through their counsel and filed version and denied that the complainant herein not used the refrigerator in accordance of the user’s manual supplied to the complainant. Infact in the every refrigerator the door has specific racks to keep the foods or water etc. The said door racks, the items can be able to store within limits of its bearing capacity. In fact at the time of the inspection of the refrigerator on 21.6.2013 it was found that the complainant herein kept the items in the door racks exceeding its bearable weight. Due to this the hinges were got bent and door was not properly closed. Hence, the O.P.No.1 was insisted the complainant to replace the door. But the complainant is not ready to replace the same. But insisted the Opposite Party No.1 to replace the refrigerator for new refrigerator, this is not covered under guarantee terms. But, the technicians made an effort to rectify the same by changing its gasket. The replacement of the gasket was charged for the reason that, the same was beyond warranty term. Further, the fault found in the refrigerator is not the manufacturing defect and it is repairable defect and this fault found after the warranty period. That within the date of guarantee card and purchase the material defect was noticed in the Refrigerator so purchased and also denied that on repeated complaints to the local service dealer attempts to repair the door were attended to on five occasions. The Opposite party No.1 further submitted that there is no manufacturing defect in the said alleged refrigerator. Further Opposite Party No.1 submitted that the complainant not used the refrigerator in accordance of the user’s manual supplied to the complainant and denied the deficiency and prayed for dismissal of the complaint. The Opposite Party submitted that, there is no cause of action to file this complaint.
On the other hand despite of serving notice to the O.P. No.2 not appeared nor represented the case till this date hence case against the Opposite Party No.2 placed as exparte. The acknowledgment placed before the FORA marked as court doc.No.1.
III. 1. In support of the complaint, Smt Josephine Towers (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex C1 to C7. On behalf of Opposite Parties No.1 one Mr.Daksha Hegde, (RW-1) Authorized Signatory filed affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Kelvinator Fridge purchased on 1.5.2012 from the opposite parties suffers from any defect?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, the facts which are admitted is that the complainant had purchased the Kelvinator fridge from Opposite Parties on 1.5.2012 by paying Rs.15,000/- to the Opposite Party with guarantee card for one year as per Ex.C1.
Now the points are in dispute between the parties before this FORA is that, complainant contended that within one year from the Guarantee card the material defects was noticed in the refrigerator, the door was defective, in that it did not close properly, so that the food kept in the fridge did not get frozen or preserved, same has been informed to the Opposite Parties, but the opposite parties failed to rectify the defect, but only a part of the fridge was replaced at cost of Rs.650/- which is marked as Ex.C3 on 21.6.2012.
Opposite Party on the contrary took a contention that the complainant is not used the refrigerator in accordance of the user’s manual and the fault found in the refrigerator is not the manufacturing defect and it is repairable defect and the fault found after the warranty period. The opposite party further submitted that there is no cause of action to file this complaint.
On perusal of the oral as well as documentary evidence available on record, we find that the complainant purchased Kelvinator refrigerator on 1.5.2012 from Opposite party for Rs.15,000/- which is marked as Ex.C1 and C2 is not disputed. Thereafter for repair the Opposite party charged Rs.650/- for replace on 21.6.2013 which is marked as Ex.C3 which is also not disputed. Thereafter the complainant issued notice to the Opposite party and the complainant was using a Kelvinator fridge from the last 31 years without any problem hence requested to the opposite party to replace the refrigerator same is marked as Ex.C4. But Opposite Party company not replace the refrigerator. Hence the complainant purchased new refrigerator from L.G. Company for Rs.1 7,950/- which is marked as Ex.C7. the Opposite party contention that there is no cause of action to file this complaint, but since five occasions i.e. from April the complainant requested to the opposite party for repair and local service dealer was attempts to repair the door and replaced the part at a cost of Rs.650/- hence the above contention doe not arise.
Generally, if the refrigerator has manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the refrigerator. As we know, the contract through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the refrigerator in this case. Further we also noticed that the complainant is already purchased the new refrigerator from L.G. Company by paying Rs.17,950/- hence replacing the new fridge does not arise.
As far as damages are concerned, we are of the opinion that the negligence on the part of the opposite parties shows that they are not ready to repair the refrigerator. In view of the above, the opposite parties are jointly and severally liable to refund the amount of Rs.15,000/- by taking back defective old fridge from the complainant along with interest at 12% per annum from the date of complaint till the date of payment. Further pay Rs.3,000/- as cost of the litigations expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 and 2 are jointly and severally shall pay Rs.15,000/-(Rupees Fifteen thousand only)by taking back defective old fridge from the complainant along with interest at 12% per annum from the date of complaint till the date of payment. Further pay Rs.3,000/- (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of April 2014)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt. Josephine Towers – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 1.5.2012: Copy of invoice for the purchase of the fridge.
Ex C2 – Copy of Guarantee card.
Ex C3 – 21.6.2013: Copy of receipt.
Ex C4 – 6.6.2013: Copy of the notice from the complainant to O.P.
Ex C5 – 2.7.2013: Copy of the reminder from complainant to Superintendent of Post, Mangalore.
Ex C6 – 24.6.2013: Copy of the reminder from complainant to O.P.
Ex C7 – 4.7.2013: Copy of the Tax invoice.
Witnesses examined on behalf of the Opposite Parties:
RW-1: Mr.Daksha Hegde, Athorized Agent and authorized signatory.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:30.4.2014 MEMBER
