IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   26^th   Day of  July   2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.138/17

Giji Philip                                          :                  Complainant

S/o Philipose Panicker

House No.33, Neethi Nagar

Chemman Mukku, Pattathanam

Kollam, Kerala

[By Adv.M.I.Alexander Panicker]

V/s

1. The Manager                            :         Opposite parties

Elegant Service

Pearl View, 32/29

Anchukallmoodu, Kollam-691012

[By Adv.G.Bimal Raj]

2. The Manager

Quilon Radio Service

Residency Road, Kollam-691001

[By Adv.David Koshy]

3. The Managing  Director

LG Electronics India Pvt.Ltd.

A Wing(3^rd Floor)

D-3, District Center Saket

New Delhi-110017.

[By Adv.G.Bimal Raj]

FAIR ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          1.This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act. 

The averments in the complaint in short are as follows:

          2.The complainant is an NRI businessman and is engaged in his business at Dubai and used to visit his native place minimum twice in a month. The complainant   had purchased a refrigerator on 26.08.2009 from  the  2^nd opposite

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party  which was manufactured and marketed by 3^rd opposite party.   The 1^st opposite party is the authorised service centre of the 3^rd opposite party. The complainant has selected the model only because of much publicity and promotion that it is the best in the market and has lot of special features and there is warranty for the compressor for 10 years and  the model has side by side doors and has capacity of 567 litres.  Total invoice amount which the complainant paid was Rs.66,000/- and the model is 567 LTR GCL217WTQ with item code LGEGCL217WTQGCL21WTQ.    The complainant and his family were using the refrigerator for few years without many complaints and thereafter for the last three years, the refrigerator is functioning with much problem in cooling.  The complainant was in touch with the authorised service centres as directed by the 2^nd opposite party.  Last year also the refrigerator was serviced by the service personnel of the 1^st opposite party , but after few days repeated the  same complaints.  The complainant had insisted that the refrigerator  has to be taken to the service centre and all the complaints  have  to be rectified and hence the refrigerator was  taken by the 1^st opposite party to their centre on 02.11.2016.  The complainant had to bear the expenses and paid  Rs.300/- then on 11.11.2016 the 1^st opposite party insisted for an advance amount of  Rs.1500/- which was also paid by the complainant.   Even on repeated requests the refrigerator was not repaired or returned for months and when the complainant visited  the service centre he noticed that the refrigerator was kept indiscreetly in open court yard with all kinds of attack from  animals and others pests.  Moreover by direct sun rays, humidity, mist and rain the condition of the refrigerator which was used very carefully by the complainant as a showpiece in the  house got faded rusty and dirty.  On repeated enquiry and compulsion on both 1^st and 2^nd opposite parties, the refrigerator was brought back on 17.01.2017 with all kinds of dirt, scratches, wear and  tear.  The 1^st opposite party    compelled    the    complainant  to   pay Rs.6300/-  more.  The

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complainant when switched on could not find any rectification of the complaints.  The refrigerator was still not cooling and it was of no use in the house.  The opposite parties were adopting unfair trade practices and is responsible for the deficiency in service.  The 1^st opposite party was criminally negligent in spoiling a refrigerator  well maintained by the complainant.  Giving big advertisement and canvassing and giving big offers and promising proper service and giving warranty for compressor but when complaints are given it is not attended properly and no repairs and maintenance done and the refrigerator purchased for Rs.66,000/- is kept idle.  The difficulty and problems that may arise due to non working  of refrigerator in the house of the complainant cannot be narrated briefly and the loss and damages that is caused cannot be equated with money.  The complainant  had caused  to issue a notice through his advocate demanding compensation for the damages caused to the complainant which was fixed to the tune of Rs.50,000/- and requesting to return Rs.8100/- the  amount received by the   1^st opposite  party  for  faulty  repair.   The  driver of  the  complainant had brought a technician from Kuttichira, TKMC PO and on his inspection of each parts of the  refrigerator, the actual point of leakage of gas was located and on soldering that point,  the fridge is cooling normally.  The said service personnel in the name and style Gowri Cool Palace, Kuttichira, TKMC PO, Kollam had charged only Rs.3500/- by issuing a bill dated 14.04.2017.  The repair and maintenance of the said technician has to be appraised on a refrigerator in which the so called 3^rd opposite parties trained and skilled authorised service personal failed.  The 1^st opposite party was doing breach of trust and was extorting Rs.8100/- from the  complainant.  Now the refrigerator is working though it looks dirty and ugly with lot of scratches made by the 1^st opposite party.  The said fridge is now kept in storeroom so as to avoid visibility to guests.  The fate of the said  refrigerator is because of the deficiency in service of the 1^st opposite party and unfair trade practice exercised

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by other opposite parties in authorising incompetent personnel as authorised service personnel.  The 1^st opposite party is liable to compensate the complainant an amount of Rs.61600/- .  The complainant had contacted and hired the service of the 1^st opposite party only because of the introduction made by the 2^nd opposite party as the Authorised Company Service Centre of the 3^rd opposite party.  The criminal   negligence, deficiency in service and unfair trade practices all the opposite parties are liable to compensate the complainant.  Hence the complaint.

          3.Opposite party 1&3 filed a joint version and the 2^nd opposite party filed a separate version  raising more or less same contentions.  The contentions in the joint version filed by  opposite party 1&3 are  as follows.  The complaint is not maintainable either in law or on facts.  However the opposite party No.1&3 would admit that the complaint was registered with  toll free number on 1/11/16.  On the basis of the above complaint authorised  person of the 1^st opposite party   on   the  very next day visited the site to inspected  the machine.  As the   machine  was out of warrantee the defects were brought to the notice of the person present  at  the house.  As the complainant, requested to replace the defective part in the fridge  the 1^st opposite party has ordered genuine parts after collecting advance amount from the complainant.  There was some delay for getting the parts.  This was properly intimated to the party by the 1^st opposite party.  But the complainant insisted to take the machine to the service centre of 1^st opposite party for keeping it for rectification immediately after getting the parts so that the delay can be avoided after getting the parts.  Hence  as per the direction and as insisted by the complainant the machine was taken to the service centre even though there is no enough space to store all the machine.  But this was done as the special request for the complainant to keep the machine in the premises of the service centre.  The same was kept covered with due care and caution.  The averment in paragraph 5 of the complaint that the refrigerator

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was kept in open manner with all kinds of attacks of dogs, cats, rats, crows are utter falsehood and is denied by the opposite parties.  When the parts are got available immediately the machine was repaired and brought  back to the house of the complainant.  The total bill amount was Rs.6300/- and after deducting the advance amount of Rs.1500/- an amount of Rs.4300/- only has been collected.  The averments in paragraph 10 of the complaint stating that a total amount of Rs.8100/- was collected by the 1^st opposite party is utter false hood and hence denied.  At the time of return the machine, the person who was in charge of the house was satisfied that the machine is  working properly.  The complainant was well aware to make any complaint regarding the machine is to be made in the toll free number which will be registered automatically.  They have never made any complaint regarding the working of the machine after it is properly repaired and entrusted back on 17.01.17.  No complaint regarding the machine was registered with any of the opposite parties after 17.01.17  after the machine was  repaired  and  given  back to the complainant.  As there was  no  complaint regarding the performance of the machine after repair with any of the opposite parties  they came to know regarding the allegation of complainant only when they received the advocate notice.  As a reputed company, immediately after receiving the advocate notice the service engineer visited the site again and found that the machine was working properly.  The complainant was also having no complaint against the performance of the machine.  But as the legal notice was sent, they have not given a written document that the machine is working satisfactory.  But they allowed to took photograph of the machine while the service engineer visiting the spot.  The 1^st opposite party never anticipated the complainant making such a false complaint before the court against the 1^st opposite party after the complainant was satisfied with the performance of the machine.  The repair of the machine  was done by a local unauthorised service centre.  The 1^st opposite party is not aware of the allegation

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and the documents produced as the bill for ‘Gowri Cool Palace’ does not show that the same machine was repaired.  Even though the complainant had made any repair of the machine with any local  centre, 1^st and 3^rd opposite parties are not liable to compensate the same.  The 3^rd opposite party is the manufacturer of the machine and they are responsible only if the machine shows any defect in the warranty period for the parts comes under warranty.  The 3^rd opposite party is falsely and  unnecessarily arrayed in this petition and therefore compensatory cost may be awarded for the frivolous complaint against the 3^rd opposite party.  The amount mentioned in paragraph 11 of the petition that Rs.8,100/- is paid to the 1^st opposite party is false and the same can be seen for the documents produced by the complainant  itself.  The opposite parties are no way liable to give any amount as compensation or under any head.  There is no deficiency in service or unfair trade practice from the part of the 1^st and 3^rd opposite parties in  this case.  As   there   is  no cause of action against 1^st and 3^rd opposite party, the complainant is liable to be dismissed with compensatory cost as the same is a frivolous and vexatious.

          4.The 2^nd opposite party would admit that  it has sold the disputed refrigerator to the complainant for Rs.66,000/-.  On receipt of  a complaint the mechanics of the 1^st opposite party attended the complaint and rectified the same on 14.04.2017 prior to that the defects were rectified on  three occasions that is on 2/11/16,11/11/16 and 11/01/17.  However the 2^nd opposite party denied the allegation of mishandling to the refrigerator by the 1^st opposite party.  According to 2^nd opposite party the alleged scratches and wear and tear existed in the refrigerator when it was brought in the  service centre.  The refrigerator was handled by the complainant and his family recklessly  without complaint with hygiene alert specifically mentioned in the warranty clause.  The 2^nd opposite party has sold   refrigerator in a trouble free condition and  all the obligation    was     complied     with    the  2^nd  opposite party while  selling the

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refrigerator to the complainant.  The warranty condition does not connect the 2^nd opposite party to render any after sale service which is undertaken by the 1^st and 3^rd  opposite parties.  No breach of trust has been committed by the 2^nd opposite party.  There is no unfair trade practice on the part of the 2^nd opposite party.  The complainant is not entitled to get any relief including compensation as claimed in the complaint.  The 2^nd opposite party is not liable to pay any compensation to the complainant.

5.In view of the above pleadings the points that arise for consideration are:-

1.  Whether the 1^st  opposite party  has mishandled the refrigerator entrusted the undo defects at their service centre?
2.  Whether the 1^st opposite party has revised excessive charge for carrying out the repair works?
3. Whether there is any deficiency in service or unfair trade practice on the side of the opposite party No.1 to 3?
4. Whether the complainant is entitled to get compensation from the opposite parties jointly and severally as claimed in the complaint?
5. Reliefs and costs.

6.The complainant has not adduced any oral evidence but got marked Ext.P1 to P5 series(P5 series marked subject proof) and P6to P8.The opposite party has not adduced any evidence either oral or documentary.Both sides have filed notes of arguments.

Heard both sides.

Point No.1 to 4

          7.For avoiding repetition of discussion of materials these 4 points are considered together.  The following are the admitted facts in this case.  The  2^nd opposite party is the authorised dealer of  LG Electronics appliances(LG Electronics) who sold the disputed refrigerator to the complainant.  The 3^rd opposite party is    the   manufacturer of the above refrigerator.  The 1^st opposite

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party is the authorised service centre of the L G refrigerator.  The 2^nd opposite party has introduced the 1^st opposite party as the service centre  of the refrigerator produced by the 3^rd opposite party.  It is further admitted that the refrigerator was purchased on 26.08.2009.  The total invoice price of the refrigerator purchased by the complainant was Rs.66,000/-.  The complainant and his family members were using   the refrigerator for a few years without any complaints.  But  there occurred cooling problem in the refrigerator for the  last 3 years.  Hence the complainant contacted the 1^st opposite party service centre for causing the  refrigerator repaired.  The refrigerator  was taken to the 1^st opposite party service centre on 02.11.2016 and it was brought back to the  residence of the complainant only on 17/01/17.  The said refrigerator was with the 1^st opposite party workshop for about 77 days.  It is also clear from the available materials that the 1^st opposite party has collected Rs.1500/- towards advance on 11/11/2016 from the complainant and finally on 17/01/17 when  the refrigerator was released after the repair work an amount of Rs.6300/- was also collected.  The complainant has also paid Rs.300/- on 2.11.2016 as transportation charges when it was brought to the service centre of the 1^st opposite party.  The 1^st opposite party would content that they have not charged that much amount.  In view of Ext.P2 to P4 documents it is  clear that the complainant has spent Rs.300+1500+6300=8100/- including transportation costs and advance paid.  Though the 1^st opposite party has totally denied having received Rs.8100/-,  they have not substantiated that fact and in view of Ext.P2 to P4 documents it is clear that the 1^st opposite party has received Rs.8100/- including transportation charges  and advance paid for repairing the refrigerator.

          8.According to the complainant the 1^st opposite party has caused inordinate delay in getting the refrigerator repaired and inspite of repeated request the refrigerator was not repaired and returned and the 1^st opposite party  kept the refrigerator at his service centre, till    17.01.2017   but it was not safely

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kept at the workshop.  According to the complainant  when he visited the service centre he noticed the refrigerator was kept indiscreetly in open courtyard exposed to sun and  rain which has also caused attack from all types of creatures and pests and as a result  direct sun rays, humidity, mist and rain  the condition of the refrigerator got faded rusty and dirty and also there occurred scratches of the body of the refrigerator, wear and tear was also caused.  It is true that the complainant has not adduced any oral evidence to prove that fact  and not obtained any report of  any expert  to prove  that  the fridge  sustained the said damage and wear and tear.  But in Ext.P6 notice the complainant has narrated all these facts. Ext.P7 series postal receipts and Ext.P8 series postal acknowledgement  cards and the same would indicate that the notice was sent to all the 3 opposite parties by registered posts and they have received the same.  It is further to be pointed out that inspite of  receipt of notice none of the opposite parties have sent  any  reply disputing or denying the  allegations raised   in   the  

lawyer notice.  Hence it is to be presumed that the averments in the notice regarding the damage caused to the refrigerator due to the careless keeping and handling of the same at the service centre of the 1^st opposite party is not denied.  In  the circumstance there is no need to prove the fact which is not disputed by the opposite parties.

9.  According to the complainant the refrigerator repaired and released from the 1^st opposite party  has became faulty again and he has got it repaired by a technician from  Kuttichira, TKMC PO, Kollam who easily found out the point of  leakage of gas and by soldering the point the defect was cured and charged only Rs.3500/- as per Ext.P5 bill.  But the said bill is marked subject to proof and  the marking is not made  absolute by examining the person who issued the bill.  Therefore we are not inclined to consider that bill.  It is further to be pointed out that there is no reliable and convincing evidence to show that the refrigerator has became  defective subsequently after getting it  repaired and  

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released from the 1^st opposite parties service centre.  This fact is not find a place in Ext.P6  lawyer notice.  The owner of the  refrigerator  was not examined in this case to substantiate  that the refrigerator has become defective again and got it repaired by another technician from Kuttichira.  The said technician is also not examined nor properly proved Ext.P5 bill issued by that technician. In the circumstances we are not  inclined to accept the case of the complaint that the refrigerator obtained after repair from the 1^st opposite party has become defective again and the complaint  got it repaired by a technician called from another service centre. 

10.On evaluating the entire materials available on record we hold that the 1^st opposite party has kept  the refrigerator for a period of two and odd months without getting it repaired within a reasonable time and also  charged highly excessive amount as repairing charges.  The materials available on record would further indicate that careless handling and repair work carried out by the 1^st opposite party has caused damage   on   the refrigerator for which the complainant is entitled to get compensation.  It is also brought out in evidence that as the refrigerator was kept in an open place exposed to sun and rain and creatures and has caused scratches on the body of the refrigerator, the painting faded etc. and the same   resulted in financial loss and mental agony to the complainant.  Therefore we are inclined to hold that there is deficiency in service on the side of the 1^st opposite party service centre and the complainant is entitled to get a reasonable compensation from the 1^st opposite party.  The points answered accordingly.

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Point No.5

          In the result the complaint stands allowed directing the 1^st opposite to pay compensation to the tune of Rs.10,000/- to the complainant for causing scratches causing to fade  the colour of the refrigerator and also causing mental agony to the complainant.  The 1^st opposite party  is further directed to pay Rs.3000/- as costs  of the proceedings to the complainant.

          The 1^st opposite is directed to comply with the above directions within 30 days from the date of receipt of a copy of this order failing which the complainant  is at liberty to realise Rs.10,000/- with interest at the rate of 12% per annum from the date of order till realisation along with costs Rs.3000/- from the opposite party No.1 and its assets. 

Opposite party No.2&3 are exonerated from liability.

Dictated to the  Confidential Assistant Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   26^th   day of  July  2019.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

                                                                        Senior Superintendent

Documents marked for the complainant:-

Ext.P1:-Retail Invoice(Duplicate copy) dated 26.08.2009

Ext.P2:- Retail Invoice dated 02.11.2016

Ext.P3:- Retail Invoice dated 11.11.2016

Ext.P4:- Retail Invoice dated 17.01.2017

Ext.P5:-Service Bill

Ext.P6:-Lawyer notice

Ext.P7:-Postal receipts(3 Nos.)

Ext.P8:-Acknowledgement card(2 No.s)

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Forwarded/by Order

                                                                        Senior Superintendent