Tamil Nadu

Thiruvallur

2011/25

L.Saravanan - Complainant(s)

Versus

The Manager, Galaxy Home Appliances, & other - Opp.Party(s)

A.Thirumalai, A.Amulraj

16 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

TIRUVALLUR DISTRICT AT TIRUVALLUR

 

  PRESENT:  THIRU. S.PANDIAN, B.Sc., L.L.M.,                    PRESIDENT

                     TMT. S. SUJATHA,B.Sc.,                                                  MEMBER-I

             TR. VENKATESAN, M.A., B.Ed.,MBA.,M.Phil.,B.L., MEMBER-II                                     

 

TUESDAY, the 16th DAY OF JUNE’2015.

CC. 25 /2011 

L.Saravanan,

S/o N.Loganathan,

No.10, Barathi Street,

Nandhanam Mettut,

Avadi, Chennai-71.

                                                                                        …Complainant 

 

-Vs-  

1.The Manager,

Galaxy Home Appliances,

No.375/422, MTH Rd,

TI Cycle Rd, Ambathur,

Chennai-53.

 

2.The Manager,

IFB Industies Ltd.,

Home Appliance Division,

Plot No. IND 5 Sector-1,

East Culcutta Township, Kolkatta,

West Bengal,  India.                                                     …Opposite parties

 

 

Counsel For Complainant                         :  Tr.A Thirumalai,M.A., M.L.

 

Opposite party- I                                        :  Ex-Parte

Counsel For Opposite party- II                 : M/s V.T.Narendran,

          This Complaint is coming upon before as finally on 04.06.2015 in the presence of the counsels on both sides and upon hearing arguments and perused the documents and evidence on both sides, this Forum delivered the following, 

 

ORDER

 

PRONOUNCED BY THIRU. S. PANDIAN, B.Sc., L.L.M., DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, TIRUVALLUR DISTRICT.
 

This complaint has been filed by the complainant under section 12 of the Consumer Protection Act 1986 against the Opposite Parties for seeking direction to replace the new washing machine instead of old machine and to pay a compensation of Rs.1,00,000/-  towards damages caused by the Respondent and for mental agony suffered by the complaint with cost.

The brief facts of the complaint are as follows:

1.       The complainant purchased IFB washing machine from the 1^st Opposite Party on 15.7.2009 for a sum of Rs.23,000/- who is the dealer of the said articles. The 2^nd Opposite Party is the manufacturer of the said product. On the date of purchase, the sales man of IFB product made assurance that if any defects arise in the washing machine, it will be replaced within a day, if the problem was reported within one week. From the date of purchase onwards, the machine is not working properly till date. The complainant complained about the fault of the washing machine to the 1^st Opposite Party’s service department and its dealer also nearly 10 times after receipt of the complaint by the 1^st Opposite party, their service persons came to his home and attend the machine and replace the spare parts every time and he paid the cost of the spare parts also. But so far no good result after service of the machine. The complainant states that till date the machine is not working and he is not satisfied about the Opposite party’s product and their service also. 

2.       In spite of repeated approach of the complainant to replace the above said washing machine but the Opposite Parties refused to do so. Hence, the complainant issued notice dated 16.12.2010 to the Opposite parties to give new washing machine. The Opposite Parties did not give any reply. Therefore, the complainant had issued again the legal notice date 25.01.2011 to the Opposite Parties calling upon them to pay the compensation of Rs.1,00,000/- and for replacement of a new washing machine. Though the Opposite Parties acknowledged the same but they did not come forward to send any reply. Hence this complaint is filed.

The averments of the Written Version of the Opposite Party – II as follows:

3.       All the allegations made in the complaint are completely denied for want of facts and suppression of material facts.  The warranty is not maintainable as the Clause “a” of  documents No.2 marked by the complainant clearly states that if the warranty card is not filled the same is not valid and as seen the warranty card is not signed and sealed by the 1^st Opposite party as done in case of sale of the washing machine. It is further denied that the machine was continuously giving trouble from the date of purchasing, this type of thousands of machine had been sold and are functioning effectively and submit that every model is rigorously tested before introduced in the marked and the complainant is neither qualified or entitled to claim irresponsibly that the machine was not good.

4.       The Opposite party contended that since the defect complained of by the complainant is not covered by the warranty, this Forum has no jurisdiction and it cannot determine the validity of the agreed terms and condition of warranty. It is stated that the technicians went immediately to the complainant’s house when they have got received complaint from the complainant and they started the work and the complainant had demanded for an interchange of different model of washing machine, which cannot be done because of the complaint’s machine usage and the different of amount between the model and had clearly informed the complainant that the interchange cannot be done and the machine was repaired.

5.       The 2^nd opposite party further submitted that there is no truth in the allegations of deficiency in service and that the washing machine only covered by warranty not guaranty, which means that in case of any defect the part would be replaced not the whole machine interchanged without prejudice to what is stated above. Therefore the complainant is not entitled to claim any relief much less then damages or cost as his conduct has been malafide. Hence, the complaint is liable to be dismissed with punitive cost.

6.       In spite of notice served to the Opposite Party-I from this Forum and given sufficient opportunity for his appearance, the opposite party-I have not come forward to appear before this forum and hence he was set ex-parte.

7.       At this stage, though it is the duty of the complainant to produce his evidence through proof affidavit and documents on his side should be marked in order to prove the case of the complainant, the complainant has not come forward to fulfill the same. Hence this forum has closed the evidence of the complainant on 09.11.2011 and ordered to proceed further with. Even there after the complainant has not chosen to file his Proof affidavit as his evidence and marked the documents as Exhibits before this forum. Instead the complainant has filed the written arguments only. While so the opposite Party - II has filed the Proof affidavit on his side for evidence. But no documents marked on his side.

8.       At this juncture, the vital points for determination before this forum is,

1. Whether it is correct to say that there is any deficiency of service on the part of the Opposite Parties?
2. Whether the complainant is entitled for any relief as prayed for?

9.       Written Arguments filed on the side of both and the copy of the same was furnished to either side. In addition Oral Arguments also adduced on both side.

11. POINT NO. (1):-

Regarding this point the duty cost upon this forum is to consider whether the complainant has established his case before this forum by means of relevant and acceptable evidence. First of all, on perusal of the averments of the complaint and Written Version of the Opposite Party-II, it is an admitted fact that the Opposite Party-1 is the authorized dealer of IFB product and Opposite Party –II is the manufacturer of the said product. Similarly there is no depute in the purchase of IFB washing machine by the complainant from the 1^st Opposite party on 15.07.2009 for a sum of Rs.23,000/- by cash. In this circumstances, regarding the other allegations made against Opposite parties in respect of the deficiency in service on the part of the Opposite parties should be proved by means of relevant and consistent evidence before this forum as contemplated under the Consumer Protection Act, 1986, since the 2^nd Opposite party has categorically denied the whole allegation made in the complaint in the Written version and in the Proof affidavit of the Opposite party-II  both factually and legally.

12.     At the outset, as narrated in the previous paras, since   the complainant has not come forward to fulfill the same Inspite of giving sufficient opportunities and therefore, this forum has closed the evidence of the complainant on 09.11.2011 and ordered to proceed further with. Even thereafter, the complainant has not chosen to file his Proof affidavit as his evidence and marked the documents as Exhibits before this forum. Instead the complainant has filed the written arguments only. At this juncture, the learned counsel would submit in the Written Arguments of the Opposite party that the complainant has not moved this forum with clean hands and has suppressed material facts and the alleged damages are only imaginary and hence the complainant is not entitled to any relief.

13.     From the foregoing facts, it is crystal clear that the complainant has failed to produce his Proof affidavit as his evidence and marked the documents filed along with the complaint as exhibit which is contrary to the provisions under the Consumer Protection Act, 1986. At this juncture, this Forum wants to enlighten that mere filing of the complaint itself is not an evidence or proof to prove the facts of the complaint before this Forum. Without filing of the Proof affidavit and marking of documents this forum cannot be taken into consideration regarding the alleged deficiency in service on the part of the Opposite parties as narrated by the complainant. Therefore, the contention placed by the Opposite party –II cannot be thrown out easily.

In the light of the above facts and observations, this Forum without any hesitation holds that the complainant has failed to prove his case by means of relevant evidence before this Forum. Thus the point No.1 is answered accordingly.

14.  POINT NO:( 2) :-      

As per the decision arrived in the point No.1, the complainant is not entitled for any relief as prayed for in the complaint and thus this point is answered accordingly.

In the result, the complaint filed by the complaint is dismissed. No cost.

Dictated to the Steno-Typist transcribed and typed by her corrected, signed and pronounced by us in the open Forum today on this 16^th of June’2015.

List of  Documents:  NIL

Sd/-                                                         Sd/-                                                             Sd/-

Member - I                                    Member - II                                                       President.