DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
Palakkad, Kerala
Dated this the 29th day of November, 2011
Present : Smt.Seena.H. President
: Smt.Preetha G Nair, Member
: Smt.Bhanumathi A.K, Member Date of filing: 10/01/2011
CC / 06/2011
K.B Baburajan,
Anugraha, 26/714, - Complainant
Gandhi Nagar, Pallipuram Post,
Palakkad – 678 006
(By Adv. P.R Hariharan)
Vs
1. The Manager,
Das Agencies,
7/10(1) College Road,
Palakkad – 678 001
(By Adv. R. Manikandan)
- Opposite parties
2. The Managing Director,
M/s. Godrej and Boyce Mfg Co Ltd,
Door No. IX/418/A4,A5,A6,
A8 and A9 near Info Park,
Edachira, Kakanad,
Kochi – 682 030
(By Adv. N.V. Peethambaran)
O R D E R
BY SMT. PREETHA. G. NAIR, MEMBER
The complainant purchased a Godrej Refrigerator from the 1st opposite party on 30/06/2004 for Rs. 14,100/-. The 2nd opposite party is the manufacturer and 1st opposite party is the authorized dealer. During July 2004, one month after purchase, the refrigerator's freezer door had water condensed outside it. The matter was reported to the 1st opposite party over telephone and the complainant was asked to contact the service center of 2nd opposite party. The technician advised the complainant to reduce the temperature setting of the fridge, the problem still continued. But by that time the monsoon season came to an end and the problem temporarily vanished. Again during the monsoon season of 2005 the refrigerator developed the same problem and the fridge broke down. The technician found that the temperature fuse had failed and the same was replaced to pay a sum of Rs. 300/- by the complainant. The refrigerator again broke down on 27/12/2005 and the technician replaced the refrigerator's sensor, MOU and fuse to pay Rs. 275/- as repair charges by the complainant. The complainant realized that the refrigerator was constantly giving trouble and breaking down, hence decided for an annual maintenance and taken on 29/12/2005 by paying a sum of Rs. 1,412/-. Again the refrigerator's freezer door developed problems and on 01/03/2006 the freezer door was replaced. Again the problem persisted and the refrigerator's door would condense during the monsoon period. A senior executive of 2nd opposite party visited the complainant's house to look into the problem. But the problem continued and the refrigerator was working with the freezer door condensing. During November 2009 the refrigerator was not cooling properly. A technician inspected the refrigerator and the complainant paid Rs. 350/- towards inspection charges. The technician informed him that the gas was leaking and the refrigerator was taken for repairs on 06/11/2009. The refrigerator returned next day and the complainant paid Rs. 1,250/- for repair charges. The refrigerator still suffers from several manufacturing defects and condenses during the monsoon. The complainant sent a letter to opposite parties 1 and 2. The 2nd opposite party had sent a reply letter dated 27/11/2009 promising to do the needful.
A senior executive of 2nd opposite party inspected the refrigerator and informed the complainant that he would revert back to him on the subject soon. Again the complainant wrote a letter to the 2nd opposite party on 26/03/2010. The 2nd opposite party again sent a reply dated 30/03/2010 stating that the matter is being looked into and offered to replace the refrigerator with a current model of complainant's choice by paying the price difference. The complainant was informed by the opposite party that he could choose a new refrigerator but the 2nd opposite party would take back the complainant's refrigerator by paying only 50% of its bill value. The exchange offer made by the 2nd opposite party was not acceptable and the complainant informed them vide letter dated 14/07/2010 and requested for a free replacement of the defective refrigerator. The 2nd opposite party vide letter dated 20/07/2010 refused the request of the complainant. Then the complainant issued a lawyer notice to 2nd opposite party. The 2nd opposite party sent a reply stating that they do not intend to replace the refrigerator as demanded by the complainant. The opposite parties have sold the refrigerator to the complainant is substandard and is of poor quality. The offer of replacement of the refrigerator goes to show the manufacturing defect. The acts of opposite parties amounts to deficiency in service. Hence the complainant prays an order directing the opposite parties to,
1) supply a new refrigerator and
2) pay Rs. 10,000/- as compensation for mental agony and
3) pay cost of the proceedings
Opposite parties filed version. The 1st opposite party stated that the complainant purchased the refrigerator from them. The 1st opposite party is the dealer of 2nd opposite party. The 1st opposite party has not received any amount from complainant as service charge. The warranty of refrigerator is only for 1 year. The 1st opposite party cannot be made liable for manufacturing defect of refrigerator. Therefore 1st opposite party prayed that the complaint dismissed with cost.
The 2nd opposite party stated that the complaint itself is barred by law of limitation. The complainant purchased the refrigerator on 30/06/2004 and the complaint filed on 31/12/2010, after 5 years and 6 months. The complaint is bad for non joinder of necessary party. As the service center not arrayed as opposite parties, who serviced the disputed refrigerator. The 2nd opposite party admits that the complainant purchased the refrigerator. The complaints of the refrigerator were rectified whenever the complainant made the complaints. It is very clear from the complaint that there was no complaint reported from 01/03/2006 onwards. There after upto November, 2009 no complaint was reported. The complaint is liable to be dismissed with cost of the 1st opposite party.
Complainant and 2nd opposite party filed affidavit. 1st opposite party has not filed affidavit. Ext. A1 to A16 marked on the side of complainant. 1st opposite party filed questionnaire. Complainant filed answers. Matter was heard.
Issues to be considered are:
1. Whether the complaint is barred by law of limitation?
2. Whether there is any deficiency in service on the part of opposite parties?
3. If so, what is the relief and cost?
Issue I
The complainant stated that he had purchased the Godrej refrigerator from the 1st opposite party on 30/06/2004 and one month after purchase the refrigerator freezer door had water condensed outside it. A perusal of the documents produced by the complainant would categorically show that the refrigerator suffered lot of problems till date. In Ext. A10 and Ext. A11 shows that on 30/03/2010 the 2nd opposite party sent letters stating that the matter is being looked into and offered to replace the refrigerator. Therefore the complaint was not barred under Section 24-A of the Consumer Protection Act.
Issues II & III
We perused relevant documents on record. The complainant had to spend a lot of money to the defective refrigerator for repairing. The complainant stated that the freezer door was also changed but still the defect continued. In Ext. A1 the complainant purchased the refrigerator from 1st opposite party for an amount of Rs. 14,100/- on 30/06/2004. Ext. A2 dated 14/07/2005 shows job carried out.... temperature fuse replaced. Therefore after one year from the date of purchase the refrigerator became defective. The 2nd opposite party stated that the complainant serviced the refrigerator in the service center of 2nd opposite party named “A One Trade Links” is not arrayed as opposite party. The complainant has produced all original documents issued by the service center named A One Trade Links. The 2nd opposite party has no objection to marking of documents and also they are the service center of 2nd opposite party. Further 2nd opposite party stated that the complaints of the refrigerator were rectified by the service center whenever the complainant made the complaints. Ext A2, A3, A4, A5 and A6 shows that the refrigerator is repaired by the service center of 2nd opposite party. In Ext. A7, the complainant sent a letter dated 17/11/2009 to opposite parties to replace the refrigerator with a good one or refund the amount of Rs. 14,100/-. There after both parties trying to settle the matter. On 30/03/2010 the 2nd opposite party issued a letter offered to replace the refrigerator. The complainant argued that the offer of replacement goes to show that the refrigerator was suffering from manufacturing defects. No contradictory evidence produced by the opposite parties. The complainant has not taken expert commission to prove the manufacturing defects of the refrigerator. On going through the documents, we considered that the opposite parties sold a defective refrigerator to the complainant. The 1st opposite party filed questionnaire to the complainant and answers filed by the complainant. The 2nd opposite party filed I.A to cross examination of complainant. I.A was allowed. Complainant present for cross examination. But the 2nd opposite party not cross examined the complainant. The 2nd opposite party argued that the complainant permanently residing in Bangalore and the electrical goods not in use get complaints very often. The 2nd opposite party has not produced evidence to show the complainant permanently residing at Bangalore. The 1st opposite party is the dealer of 2nd opposite party. In Ext. A2 the refrigerator shows the defects on 2005. The complainant has purchased the refrigerator on 30/06/2004. It is a fit case for awarding compensation for deficiency in service.
In the above discussions we are of the view that there is deficiency in service on the part of opposite parties. In the result the complaint partly allowed. We direct the opposite parties jointly and severally liable to pay Rs. 7,000/- as compensation for mental agony and pay Rs. 1,000/- as cost of the proceedings to the complainant.
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 receipt of order till realization.
Pronounced in the open court on this the 29th day of November, 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 – Original of Invoice issued by the 1st opposite party to the complainant dated 30/06/2004.
Ext. A2 - Original of Service Card issued by A One Trade Links to the complainant dated 14/07/2005.
Ext. A3 - Original of Service Card issued by A One Trade Links to the complainant dated 27/12/2005.
Ext. A4 - Original of Service Card issued by A One Trade Links to the complainant dated 01/03/2006.
Ext. A5 - Original of Customers Cash Memo Copy issued by A One Trade Links to the complainant dated 05/11/2009.
Ext. A6- Original of Service Bill issued by A One Trade Links to the complainant dated 07/11/2009.
Ext. A7 - Original of Lawyer Notice sent by the complainant to the opposite parties dated 17/11/2009.
Ext. A8 - Original of Reply Letter sent by the 2nd opposite party to the complainant dated 27/11/2009.
Ext. A9 -Original of Letter sent by the complainant to M/s. Godrej & Boyce Manufacturing Co. Ltd, Mumbai dated 26/03/2010.
Ext.A10- Original of Reply Letter issued by the M/s. Godrej & Boyce Manufacturing Co. Ltd, Mumbai to the complainant dated 30/03/2010.
Ext. A11- Original of Letter sent by the 2nd opposite party to the complainant dated 30/03/2010.
Ext. A12- Original of Letter sent by the 2nd opposite party to the complainant dated 30/06/2010.
Ext. A13 -Original of Reply Letter sent by the complainant to the 2nd opposite party dated 14/07/2010.
Ext. A14– Copy of Letter from the 2nd opposite party to the complainant dated 20/07/2010.
Ext. A15 – Original of Lawyer Notice with Acknowledgement Due and postal receipt issued by the complainant to the 2nd opposite party dated 10/12/2010.
Ext. A16 -Original of Letter with Acknowledgement Due issued by the 2nd opposite party to the complainant's lawyer dated 14/12/2010.
Exhibits marked on the side of the opposite parties
Nil.
Witness examined on the side of the complainant
Nil.
Witness examined on the side of the opposite parties
Nil.
Cost allowed
Rs. 1,000/- (Rs. One Thousand Only) allowed as cost of the proceedings.
