BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 330/2009 Filed on 24/11/2009

Dated: 31..08..2010

Complainant:

Sampath Kumar, S/o Sathikumar, Thivilakam House, Vayyammoola, Vallakkadavu, Thiruvananthapuram. Represented by his Power of Attorney Holder – Sathikumar, s/o krishnan, DNRA-1, TC 77/2659, Devi Nagar, Vallakkadavu – P.O., Thiruvananthapuram.

(By Adv. G.S. Sanal Kumar)

Opposite parties:

1. The Manager, Whirlpool of India Ltd., MG Road, Ravipuram, Cochin.

2. Vijaya Rajeesh, Manager, Whirlpool of India Ltd., N.H Bye Pass Road, South Kalamaserry, Ernakulam.

3. Hi-Tech Solutions, Whirlpool Authorised Service Centre, TC 14/1733, opp. Ganapathy Kovil, Vazhuthacaud, Thiruvananthapuram.

4. Maya Agencies, TC.28/2428, MG Road, opp. SMV High School, Thiruvananthapuram.

This O.P having been heard on 20..08..2010, the Forum on 31..08..2010 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The case of the complainant is as follows: The complainant had purchased a Whirlpool 350 litre refrigerator from the 4^th opposite party for an amount of Rs.23,250/- on 22/08/2003. The said refrigerator has a warranty period of 7 years. Further an amount of Rs. 1,800/- was also paid by the complainant as service charges for 67 months. The said refrigerator purchased by the complainant has manufacturing defect and it was not functioning which constrained the complainant to approach the 4^th opposite party and they directed the complainant to take the said refrigerator to the 3^rd opposite party. As per the same the complainant entrusted the said refrigerator to the 3^rd opposite party for repair on 30/07/2008 and they have given receipt for the same. Thereafter the 3^rd opposite party informed that the said refrigerator has manufacturing defect and only the 1^st & 2^nd opposite party has the capacity to cure the manufacturing defect or to replace the said refrigerator with a new one. The complainant several times contacted opposite parties 1 to 3 but they avoided the same. After 30/7/2008 till date the said refrigerator which was entrusted to the 3^rd opposite party was neither returned after curing the defect nor replaced the same since the refrigerator has warranty till 23/08/2010. For the last one year the complainant is put to untold hardship and misery since the said refrigerator which was entrusted for repair was not handed over after curing the defect even after repeated demands by the complainant. The said illegal acts and deeds of the opposite parties tantamounts to clear fraud callous negligence and deficiency in service on the part of the opposite parties and the said illegal acts has caused great hardship and mental agony to the complainant. Hence this complaint has been necessitated.

2. The opposite parties remain exparte.

The Power of Attorney Holder of the complainant has filed affidavit and marked Exts. P1 to P5 series. He has not been cross examined and hence his affidavit stands unchallenged.

The issues that arise for consideration are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

3. Points (i) & (ii): The allegation of the complainant is that the refrigerator entrusted to the opposite parties for repairing has not been returned till date and further the refrigerator suffers from manufacturing defect. According to the complainant, the refrigerator has been entrusted with the opposite parties within the period of warranty and relied on Ext. P1 in support of the same. As per Ext. P1, the complainant has been registered under Home Care Plan Application and this plan covers maintenance of complainant's whirlpool 350 Icemagic Elite FF White Chasis No. J2551648/33H03 purchased on 22/08/2003. As per Ext. P1, the Home Care plan starts on 21/01/2005 and expires on 23/08/2010. Payment of Rs.1,800/- towards repair charges is proved by Ext. P2(a) dated 21/05/2005. The collection/delivery note dated 30/07/2008 which has been marked as Ext. P2 evidences that the complainant's refrigerator has been entrusted with the 3^rd opposite party for the reason 'no cooling'. The complainant alleges that, the refrigerator has not been returned to him till date. Furthermore, the complainant has pleaded that, the 3^rd opposite party had informed that the refrigerator has manufacturing defect and only 1^st & 2^nd opposite parties have the capacity to cure the manufacturing defects or to replace the refrigerator. As the opposite parties have not filed their version and since the affidavit filed also stands unchallenged, we are left with no other option than to accept the case of the complainant.

4. The refrigerator in dispute is still with the 3^rd opposite party. There is no evidence to substantiate the cost of the refrigerator as Rs. 23,250/- except to the pleadings and sworn statement. Considering the above facts and circumstance of the case, we hereby find that no liability can be attributed upon 4^th opposite party as no deficiency of service has been proved against 4^th opposite party with cogent evidence. The complainant is found entitled to get back the refrigerator in working condition free of cost from 3^rd opposite party, to the full satisfaction of the complainant within a period of one month failing which opposite parties 1 to 3 shall refund Rs.15,000/- ie., less Rs. 8,250/- towards depreciation as the complainant could use the same till 2008 for a period of about 5 years. Opposite parties 1 to 3 shall also pay Rs. 5,000/- towards costs and compensation. 4^th opposite party is exempted from any liability.

In the result, complaint is allowed. Opposite parties 1 to 3 shall return the refrigerator in dispute to the complainant in working condition to the satisfaction of the complainant free of cost within one month from the date of receipt of the order failing which the opposite parties 1 to 3 shall refund Rs.15,000/- to the complainant. The opposite parties 1 to 3 shall also pay Rs. 5,000/- towards costs and compensation to the complainant. Time for compliance 2 months failing which the entire amount above mentioned shall carry interest @ 9% per annum from the date of order till realisation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 31^st day of August, 2010.

S.K. SREELA, MEMBER

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A., MEMBER.

ad.

C.C.No.330/2009

APPENDIX

I. Complainant's witness:

PW1 : NIL

II. Complainant's documents:

P1 : Copy of letter dated 29/01/2005

P2 : " collection/delivery note dated 30/07/2008

P3 : " Advocate notice dated 7/7/2009

P4 : Postal receipt dated 14/07/2009

P5 : Acknowledgement cards

III. Opposite parties' witness : NIL

4. Opposite parties' documents : NIL

PRESIDENT