BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 19/02/2013

Date of Order : 26/06/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 138/2013

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the facts of the complainant's case are as follows :-

On 11-11-2011, the complainant purchased a Microwave oven from the 2^nd opposite party at a price of Rs. 12,000/- which was manufactured by the 1^st opposite party with warranty for 3 years. The machine stopped working 6 times within a year. The opposite parties could not rectify the defects of the machine despite repeated requests. Thus, the complainant is before us seeking direction against the opposite parties to replace the defective oven with a new one together with a compensation of Rs. 25,000/- and Rs. 10,000/- towards costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The complainant has purchased the microwave oven on 28-11-2011. The warranty given for the microwave oven is one year and the warranty for magnetron and cavity is for 3 years. The first call was on 18-06-2012 from the complainant complainant that microwave is not heating. On inspection, it is found that due to the high voltage magnetron and the high voltage capacitor were damaged. The same were replaced under warranty. The complainant was advised installation of electronic high-low-voltage cutout in his premises. The second call from the complainant was on 24-10-2012 with the same complaint. On inspection, no abnormalities were detected. Again on 02-11-2012, a complaint was received and on inspection it was found that the complainant is using the oven without the electronic high-low-voltage cutout for his convenience. The high voltage capacitor was damaged. The same was replaced under warranty. On receipt of a complaint on 07-11-2012, the 1^st opposite party deputed its service engineer and on inspection no abnormalities were detected. The oven of the complainant is in good condition. There is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. Despite service of notice from this Forum, the 2^nd opposite party did not respond to the same for reasons of their own. No oral evidence was adduced by the complainant. Exts. A1 to A3 were marked on the side of the complainant. The witness for the 1^st opposite party was examined as DW1. Heard the complainant who appeared in person and the learned counsel for the 1^st opposite party.

4. The points that came up for consideration are as follows :-

1. Whether the complainant is entitled to get replacement of the microwave oven in question?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- It is not in dispute that the complainant purchased a microwave oven from the 2^nd opposite party on 11-11-2011 at a price of Rs. 12,000/-, which was manufactured by the 1^st opposite party evident from Ext. A1 tax invoice. According to the complainant, the opposite parties granted 3 years warranty for the machine. Ext. A3 warranty goes to show that the 1^st opposite party provided 12 months warranty for the machine. However, the 1^st opposite party in their version stated that the microwave oven is having warranty for a year and the warranty given for magnetron and cavity is for 3 years. We are only to accept the same.

6. The complainant stated that in spite of repeated repairs and installation of a stabilizer, the machine became defunct. The opposite parties contended that as and when they received the complaints from the complainant, they attended to the same and the machine is in working condition. We are not to accept the same for the simple reason that nothing is on record to substantiate the same. DW1, the service engineer of the 1^st opposite party deposed that his technician informed him that the machine is working properly. It is pertinent to note that DW1 had no occasion to inspect the machine under dispute. The best evidence available in this case is the oral testimony of the technician who attended to the machine and the reports prepared by him. The non-production of the above evidence in this Forum speaks volumes. According to the Hon'ble National Consumer Disputes Redressal Commission, for the failure to produce the best evidence in possession of a party the only inference that can be drawn is that the evidence did not exist and has been subsequently created on an afterthought (The Proprietor, M/s. Vinay Enterprises Vs. A.S. Kandappa Reddy & Anr. RP No. 4611/2008 decided on 13-01-2009). Admittedly, at the instance of the 1^st opposite party, the complainant installed a high voltage cutout and in spite of that the machine is not working properly that too within the warranty period which goes to show that the machine suffers from inherent manufacturing defect. The complainant is entitled to get his microwave oven replaced with a new one.

7. Point No. ii. :- The opposite parties should have addressed the genuine complaint of the complainant at the outset, in which they failed. The complainant had to approach this Forum to get his grievances redressed, which calls for compensation and costs of the proceedings. We fix it at Rs. 5,000/-.

8. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally replace the defective microwave oven of the complainant with a new one with fresh warranty according to the choice of the complainant. The difference in price, if any shall be met by either.

2. The opposite parties shall jointly and severally also pay Rs. 5,000/- to the complainant towards compensation and costs of the proceedings.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 26^th day of June 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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