CONSUMER DISPUTES REDRESSAL FORUM

PALAKKAD, KERALA

Dated this the 11^th day of January, 2012.

Present: Smt. Seena. H, President

: Smt. Preetha. G. Nair, Member

: Smt. Bhanumathi. A. K, Member Date of filing: 28/07/2011

CC/123/2011

K. Abdul Azeez,

S/o. Late Kunjava Rowther,

30/530, Jameela Colony,

Poolakkad, Nurani Post,

Palakkad. - Complainant

(BY ADV. M. ABDUL KALEEL)

Vs

1. The Manager,

Jamal Sales Corporation,

Jamal Building, Court Road,

Palakkad

(BY ADV. T.P.O. AKBAR ALI)

2. The Manager,

Tech Care India Pvt Ltd.,

Madhan Techini Cool,

Vennakkara, Palakkad.

(BY ADV. T.R. BABU)

3. Manoj. K,

Tech Care India Pvt Ltd.,

No. 20/1100A, Azad Building,

Cherumanassery Road,

Kallai Post,

Calicut- 673 003. - Opposite parties

(BY ADV. T.R. BABU)

O R D E R

BY SMT. SEENA.H, PRESIDENT

Complaint in brief:-

The complainant has purchased a kelvinator double door silver colour (KF260P) with one year warranty for his domestic use on 05/03/2009 from the 1^st opposite party as per invoice No. 3725 for an amount of Rs. 13,450/- manufactured by the 3^rd opposite party. The complainant purchased the above product for the purpose of keeping the insulin injection used by his wife, who is an acute diabetic patient. But from the very beginning of its purchase due to overheat the tray of the refrigerator melted. It showed low cooling complaint many times. At last by the direction of the 1^st opposite party, the complainant complained about the compressor overheating on 01/05/2010 for that the 2^nd opposite party has given a reference No. E/4659 and the 2^nd opposite party sent technicians many times and stated that the compressor of the refrigerator not working properly in full strength and certified that the refrigerator has manufacturing defect and assured to replace the same with a new one. After that the refrigerator fully stopped working. Since the opposite parties 1 & 2 did not keep their promise the complainant caused a lawyer notice dated 19/02/2011 calling upon the opposite parties 1 & 2 to replace the defective refrigerator with a new one. The complainant did not get any benefit on purchase of the refrigerator, being a cardiac person he was fed up with the acts of the opposite parties and also his wife has to approach nearby clinic many times for the purpose of taking insulin. Till today the opposite parties have not redressed the grievance of the complainant. Hence the complaint.

Contentions of the 1^st opposite party

1^st opposite party admits purchase of the refrigerator. According to 1^st opposite party, after sale services are the responsibility of 2^nd and 3^rd opposite parties who are the service agents of the manufacturer. 1^st opposite party has duly intimated the defect to 2^nd and 3^rd opposite parties as and when complainant intimated. Hence no deficiency on their part.

contentions of 2^nd and 3^rd opposite parties

It is stated that 3^rd opposite party is not the manufacturer as stated by the complainant, but only a servicing agent. Further opposite parties were always ready to repair the refrigerator as per the warranty conditions. Any defect occurred in the warranty period which cannot be repaired will be replaced or refrigerator having manufacturing defect also will be replaced. Opposite party deny the say of the complainant that refrigerator became defective on 01/05/2010. Lawyer notice is seen to issued after a long period ie, 19/12/2011 which shows that it is crooked up story. 2^nd and 3^rd opposite parties were always ready to rectify the defect but could not as the complainant was not ready for any other settlement than replacement. According to 2^nd and 3^rd opposite parties, there is no manufacturing defect for the refrigerator. Only compressor has got defect. Hence no deficiency in service on the part of opposite parties.

The evidence led by the complainant consists of the chief affidavit and Ext. A1 to A3. Opposite parties also filed chief affidavit. No documentary evidence on their part.

Issues for consideration:-

1. Whether the refrigerator supplied to the complainant is a defective one and

Whether there is any deficiency in service on their part?

2. If so, what is the relief and costs entitled to the complainant?

Issues I & II

The definite case of the complainant is that the refrigerator purchased by the complainant showed defects like over heating of compressor, slow cooling etc immediately after the purchase itself. According to 1^st opposite party, they being the dealer has no responsibility of after sale service. After sale service is the responsibility of 2^nd and 3^rd opposite parties. 2^nd and 3^rd opposite parties contented that the defects stated has occurred after the period of warranty. They admits that there is problem with the compressor.

Heard both parties and has gone through the entire evidence on record.

The definite case of the complainant is that the refrigerator purchased by the complainant showed defects like overheating of compressor, slow cooling etc immediately after the purchase itself.

According to 1^st opposite party, being dealer the whole responsibility of after sale service is with the 2^nd and 3^rd opposite parties.

2^nd and 3^rd opposite parties contented that the defect occurred after the expiry of the period of warranty. 2^nd and 3^rd opposite parties admits that there is problem with the compressor.

Purchase is admitted. Though complainant has not taken any steps to appoint an expert commissioner to prove the defects of the refrigerator, we find that 2^nd and 3^rd opposite parties has admitted that there is a problem with respect to the compressor. Though complainant has submitted that the defect occurred immediately after the purchase, no piece of evidence is produced before us to prove the same except a reference No. E/4655 mentioned in the complaint for the registration of the complaint. Opposite parties has not taken a contention that they have not issued the said reference No. Complainant has also issued a lawyer notice dated 15/02/2011 calling upon the opposite parties to settle his grievance. According to the opposite parties they have inspected the refrigerator twice on 25/01/2011 and 05/02/2011 and has found that the compressor was defective. But complainant was not ready for clearing the defect instead he requested to replace the same. No evidence is forthcoming to prove this aspect.

On going through the facts and evidence on record, we find that opposite parties failed to rectify the defect occurred within the period of warranty. More over as per Ext. A2, compressor carries 5 years warranty from the date of purchase. We find that opposite parties failed to carry out the after sale service as per the warranty and hence there is deficiency in service on the part of all opposite parties. Though manufacturing defect is not proved, we find that the refrigerator supplied to complainant is a defective one. Hence all opposite parties are liable to compensate the complainant. Considering the fact that the complainant has used the refrigerator for 1½ years, we are of the view that 75% of the purchase price would meet the ends of justice.

In the result, complaint allowed. We direct the opposite parties jointly and severally to pay Rs. 11,000/- (Rupees Eleven thousand only) as compensation to the complainant and Rs. 1,000/- (Rupees One thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 11^th day of January, 2011

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

Sd/-

Smt. Bhanumathi.A.K

Member

A P P E N D I X

Exhibits marked on the side of the complainant

Ext. A1 – Photocopy of Invoice issued by the 1^st opposite party dated 05/05/2009.

Ext. A2 – Photocopy of Warranty Card and user's manual of Kelvinator refrigerator.

Ext.A3 (series)– Photocopy of Lawyer Notice with postal receipt and acknowledgment Due issued by the complainant.

Exhibits marked on the side of the opposite party

Nil.

Witness examined on the side of the complainant

Nil.

Witness examined on the side of the opposite party

Nil.

Cost allowed

Rs. 1,000/- (Rupees One thousand only) allowed as cost of the proceedings.