BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 209/2001 Filed on 09..05..2001 Dated: 15..05..2009 Complainant: K.I. Sadasivan, T.C.No.27/244, Reshmy Bhavan, Thampuranmukku, Kunnukuzhy-P.O., Thiruvananthapuram- 695 037. (By Adv. S. Vijayakumar) Opposite parties: The Manager, Godrej G.E. Appliances Ltd., 34/544-B, Padivattom, N.H Bye-pass, Edappally-P.O., Kochi-682 024. (By Adv. K.G. Mohandas Pai) The Manager, Maya Agencies, M.G. Road, Thiruvananthapuram-695 001. The Manager, Dynamic Refrigerator, N.S.Depot Junction, Vallakkadavu, Thiruvananthapuram-695 008.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 19..04..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..04..2009, the Forum on 15..05..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The brief facts leading to the filing of the complaint are as follows: The complainant purchased a Godrej Refrigerator 230 litres on 16/10/1996 for an amount of Rs.10,329/- from the authorised agent of Godrej appliances through the CSD Canteen of Army Authorities. The said refrigerator had a warranty for 4 years and within one year of its purchase heavy rusting was seen in the refrigerator. This was brought to the notice of Maya Agencies, who was the authorised agent at Thiruvananthapuram at that time. The complainant repaired and replaced the body by taking special sanction from the 1st opposite party. The refrigerator was consuming heavy electricity and it was twice taken to the service centre, but the damage could not be rectified. The complainant apprehends that a second hand refrigerator has been sold to him in the pretext of a new one. Though the damages were brought to the notice of the opposite party and their agents, the defects could not be rectified inspite of repair works. Hence this complaint for replacement of the rusted old second hand refrigerator with a brand new one along with compensation and costs.
2. The 1st opposite party has filed their version contending as follows: The complainant is not a consumer and the complaint is not maintainable. The purchase was made through the Army Canteen and the complainant should be put to strict proof regarding the purchase. The refrigerator is having only one year warranty from the date of sale. Thereafter, 4 years optional service contract will be entered into by the seller and the manufacturer only on making additional payment and whether 4 years optional service contract was entered into is not known. The averment that it had rusting within one year of purchase is not correct and the consumption of heavy electrical energy is also denied. As a special case, a brand new cabinet was given to the complainant. The allegation that the refrigerator was a second hand one, is absolutely false and denied, that the alleged defect is only minor disorder due to the choking (gas block), this can be rectified at no cost, within no time. The complainant is using the refrigerator in his business in soft drinks and bakery at General Hospital Junction and he is also using another Godrej refrigerator which is perfectly alright. The rusting can happen only due to the placing of the refrigerator close to the wash basin or sink, it is not manufacturing defect. The alleged mental agony and torture is only imaginary and made for the sake of the case. There is no deficiency of service as alleged. There is no defect at all to the refrigerator in question, and rusting is not a defect. The complaint is only on experimental basis and it appears that the complainant and the dealer Maya Agencies are having some personal enemity. The manufacturer is dragged unnecessarily into this litigation. Hence 1st opposite party prays for dismissal of the complaint with cost.
3. The 2nd opposite party has filed their version stating that they have not sold refrigerator to the complainant and they have not carried out any repair of the refrigerator. All the charges levelled against the opposite party are fabricated and baseless. Hence prays for exempting them from the case.
4. The 3rd opposite party has not filed any version, hence they are set ex-parte.
5. Complainant has filed affidavit and marked Exts.P1 to P11. The report filed by the commissioner has been marked as Ext.C1. 1st opposite party has also filed their affidavit and marked Exts. D1 & D2.
6. The points that would arise for consideration are:
Whether the refrigerator supplied to the complainant suffers from any manufacturing defect? Whether there is any deficiency in service on the part of the opposite parties? Reliefs and costs?
7. Point Nos.(i) to (iii): The complainant alleges that the bottom side of the refrigerator purchased by him, which had a guarantee for 4 years, got rusted heavily and the refrigerator was consuming heavy voltage due to the damage of the motor/compressor. The complainant apprehends that this has happened as an old refrigerator has been sold to the complainant in the pretext of a new one. The 1st opposite party has alleged that the complaint is barred by limitation. The complaint has been filed in May 2001 which is after the expiry of 5 years of purchase. From the records it is seen that the refrigerator has been purchased on 16/10/1996 and it has a warranty for one year. Besides this the complainant has been promised with a 4 year service contract as per Ext.P2 warranty card. Ext.D1 is the service card pertaining to the refrigerator in dispute which is dated 2/4/2001. From the documents on record we find that question of limitation does not arise.
8. Now the aspect for consideration is whether the refrigerator has the defects alleged in the complaint. The complainant has alleged that within a year of purchase, the body of the fridge was repaired and replaced as there was heavy rusting. The 1st opposite party in their version has admitted that as a special case a brand new cabinet was given to the complainant. Hence we find force in the argument of the complainant.
9. The expert commissioner has reported that the bottom side of the body of fridge is heavily rusted. The back side cover to protect the thermal insulation PUF (Poly Urethane) is not put back after the service. The Commissioner has concluded that "The defects noted in the Refrigerator are of serious magnitude and is a manufacturing defect due to inferior quality components employed for the refrigerating system. Because of the choking of refrigerant (gas) in the capillary tube, the proper cooling is impossible inside the fridge. Due to this condition the compressor motor is in continuous working and a burn out of the motor may happen at any time. Wastage of electricity is also the result. The defects noted above contribute to failure and reduction in the life of the Gogrej Fridge. Hence a refrigerator body replacement and rectification of the fault in the sealed unit is essential for the proper functioning of the refrigerator. From the foregoing analysis Commissioner has no hesitation to report that the fridge is having manufacturing defect by the usage of inferior components".
10. The 1st opposite party has filed their detailed objection to the commissioner's report and has further stated that the Commissioner's report is not acceptable as he is incompetent and the report is baseless. The learned counsel for the opposite party had argued that even though the opposite party had taken steps to summon the commissioner, he was unwilling to offer for cross examination. Furthermore, the learned counsel has argued that in such a circumstance adverse inference has to be drawn by the Forum and produced the ruling of Hon'ble Tamil Nadu State Commission, reported in II(2005) CPJ 256, in favour of his argument. The court records show that the commissioner was not present for evidence, hence evidence over. Moreover, the opposite party had contended that if any coercive steps are taken then they apprehend that the Commissioner might depose against this opposite party. Anyhow, the opposite party has not initiated any coercive steps against the commissioner. In the absence of the above, the report of the Commissioner stands uncontroverted. In the light of the above facts and circumstances of the case and on the basis of the report of the expert commissioner we come to the conclusion that the refrigerator supplied to the complainant is suffering from manufacturing defect.
11. From the above discussions we are of the view that, the very purpose of the complainant would not be served if the refrigerator is replaced after such a long period of more than ten years. There is no dispute that the complainant has used the refrigerator and hence we find it not proper to order for replacement of the refrigerator with a brand new one. Hence after deduction of amount towards depreciation we find that the complainant is entitled for an amount of Rs.5,000/- towards cost of fridge and an amount of Rs.2,500/- as compensation along with a cost of Rs.2,500/- from the 1st opposite party. Opposite parties 2 & 3 are exempted from any liability.
In the result, the complaint is allowed and the 1st opposite party shall pay an amount of Rs. 5,000/- (Rupees Five thousand only) and Rs. 5,000/- (Rs.2,500/- + 2,500/-) towards compensation and costs to the complainant within a period of one month from the date of receipt of the order, failing which the above amounts shall carry interest @ 12%.
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 15th day of May, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.209/2001
APPENDIX
I. Complainant's witness: NIL
II. Complainant's documents: P1 : Photocopy of receipt No.300251 dt. 16/10/96 for Rs.10,329/-. P2 : Copy of warranty card dt. 17/10/96 P3 : Copy of bill No.252 dt. 16/2/1998 P4 : Copy of advocate's notice dt. 27/3/2001 P5 : Acknowledgment card dt. 27/3/2001 P5(a) : Postal receipt dt. 27/3/2001 P6 : Copy of bill No.A-305479 dt. 5/5/2001 of Electricity Board. P7 : Copy of bill No.VP.No.4398307 dt. 3/3/2001 P8 : Photocopy of cash memo No.4250 dt.15/6/2000 P9 : Copy of bill No.750 dt. 20/6/2000 P10 : Bill No.G-239730 dt. 2/1/2002 issued by opp.party
III. Opposite parties' witness: NIL
Opposite parties' documents:
D1 : Original service call/cash memo No.6214 dt. 2/4/01. D2 : Copy of reply notice dt. 17/5/01 issued to opp. Party
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER O.P. No: 209/2001 Filed on 09..05..2001 Dated: 15..05..2009 Complainant: K.I. Sadasivan, T.C.No.27/244, Reshmy Bhavan, Thampuranmukku, Kunnukuzhy-P.O., Thiruvananthapuram- 695 037. (By Adv. S. Vijayakumar) Opposite parties: The Manager, Godrej G.E. Appliances Ltd., 34/544-B, Padivattom, N.H Bye-pass, Edappally-P.O., Kochi-682 024. (By Adv. K.G. Mohandas Pai) The Manager, Maya Agencies, M.G. Road, Thiruvananthapuram-695 001. The Manager, Dynamic Refrigerator, N.S.Depot Junction, Vallakkadavu, Thiruvananthapuram-695 008.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 19..04..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..04..2009, the Forum on 15..05..2009 delivered the following: ORDER
SMT. S.K.SREELA, MEMBER:
The brief facts leading to the filing of the complaint are as follows: The complainant purchased a Godrej Refrigerator 230 litres on 16/10/1996 for an amount of Rs.10,329/- from the authorised agent of Godrej appliances through the CSD Canteen of Army Authorities. The said refrigerator had a warranty for 4 years and within one year of its purchase heavy rusting was seen in the refrigerator. This was brought to the notice of Maya Agencies, who was the authorised agent at Thiruvananthapuram at that time. The complainant repaired and replaced the body by taking special sanction from the 1st opposite party. The refrigerator was consuming heavy electricity and it was twice taken to the service centre, but the damage could not be rectified. The complainant apprehends that a second hand refrigerator has been sold to him in the pretext of a new one. Though the damages were brought to the notice of the opposite party and their agents, the defects could not be rectified inspite of repair works. Hence this complaint for replacement of the rusted old second hand refrigerator with a brand new one along with compensation and costs.
2. The 1st opposite party has filed their version contending as follows: The complainant is not a consumer and the complaint is not maintainable. The purchase was made through the Army Canteen and the complainant should be put to strict proof regarding the purchase. The refrigerator is having only one year warranty from the date of sale. Thereafter, 4 years optional service contract will be entered into by the seller and the manufacturer only on making additional payment and whether 4 years optional service contract was entered into is not known. The averment that it had rusting within one year of purchase is not correct and the consumption of heavy electrical energy is also denied. As a special case, a brand new cabinet was given to the complainant. The allegation that the refrigerator was a second hand one, is absolutely false and denied, that the alleged defect is only minor disorder due to the choking (gas block), this can be rectified at no cost, within no time. The complainant is using the refrigerator in his business in soft drinks and bakery at General Hospital Junction and he is also using another Godrej refrigerator which is perfectly alright. The rusting can happen only due to the placing of the refrigerator close to the wash basin or sink, it is not manufacturing defect. The alleged mental agony and torture is only imaginary and made for the sake of the case. There is no deficiency of service as alleged. There is no defect at all to the refrigerator in question, and rusting is not a defect. The complaint is only on experimental basis and it appears that the complainant and the dealer Maya Agencies are having some personal enemity. The manufacturer is dragged unnecessarily into this litigation. Hence 1st opposite party prays for dismissal of the complaint with cost.
3. The 2nd opposite party has filed their version stating that they have not sold refrigerator to the complainant and they have not carried out any repair of the refrigerator. All the charges levelled against the opposite party are fabricated and baseless. Hence prays for exempting them from the case.
4. The 3rd opposite party has not filed any version, hence they are set ex-parte.
5. Complainant has filed affidavit and marked Exts.P1 to P11. The report filed by the commissioner has been marked as Ext.C1. 1st opposite party has also filed their affidavit and marked Exts. D1 & D2.
6. The points that would arise for consideration are:
Whether the refrigerator supplied to the complainant suffers from any manufacturing defect? Whether there is any deficiency in service on the part of the opposite parties? Reliefs and costs?
7. Point Nos.(i) to (iii): The complainant alleges that the bottom side of the refrigerator purchased by him, which had a guarantee for 4 years, got rusted heavily and the refrigerator was consuming heavy voltage due to the damage of the motor/compressor. The complainant apprehends that this has happened as an old refrigerator has been sold to the complainant in the pretext of a new one. The 1st opposite party has alleged that the complaint is barred by limitation. The complaint has been filed in May 2001 which is after the expiry of 5 years of purchase. From the records it is seen that the refrigerator has been purchased on 16/10/1996 and it has a warranty for one year. Besides this the complainant has been promised with a 4 year service contract as per Ext.P2 warranty card. Ext.D1 is the service card pertaining to the refrigerator in dispute which is dated 2/4/2001. From the documents on record we find that question of limitation does not arise.
8. Now the aspect for consideration is whether the refrigerator has the defects alleged in the complaint. The complainant has alleged that within a year of purchase, the body of the fridge was repaired and replaced as there was heavy rusting. The 1st opposite party in their version has admitted that as a special case a brand new cabinet was given to the complainant. Hence we find force in the argument of the complainant.
9. The expert commissioner has reported that the bottom side of the body of fridge is heavily rusted. The back side cover to protect the thermal insulation PUF (Poly Urethane) is not put back after the service. The Commissioner has concluded that "The defects noted in the Refrigerator are of serious magnitude and is a manufacturing defect due to inferior quality components employed for the refrigerating system. Because of the choking of refrigerant (gas) in the capillary tube, the proper cooling is impossible inside the fridge. Due to this condition the compressor motor is in continuous working and a burn out of the motor may happen at any time. Wastage of electricity is also the result. The defects noted above contribute to failure and reduction in the life of the Gogrej Fridge. Hence a refrigerator body replacement and rectification of the fault in the sealed unit is essential for the proper functioning of the refrigerator. From the foregoing analysis Commissioner has no hesitation to report that the fridge is having manufacturing defect by the usage of inferior components".
10. The 1st opposite party has filed their detailed objection to the commissioner's report and has further stated that the Commissioner's report is not acceptable as he is incompetent and the report is baseless. The learned counsel for the opposite party had argued that even though the opposite party had taken steps to summon the commissioner, he was unwilling to offer for cross examination. Furthermore, the learned counsel has argued that in such a circumstance adverse inference has to be drawn by the Forum and produced the ruling of Hon'ble Tamil Nadu State Commission, reported in II(2005) CPJ 256, in favour of his argument. The court records show that the commissioner was not present for evidence, hence evidence over. Moreover, the opposite party had contended that if any coercive steps are taken then they apprehend that the Commissioner might depose against this opposite party. Anyhow, the opposite party has not initiated any coercive steps against the commissioner. In the absence of the above, the report of the Commissioner stands uncontroverted. In the light of the above facts and circumstances of the case and on the basis of the report of the expert commissioner we come to the conclusion that the refrigerator supplied to the complainant is suffering from manufacturing defect.
11. From the above discussions we are of the view that, the very purpose of the complainant would not be served if the refrigerator is replaced after such a long period of more than ten years. There is no dispute that the complainant has used the refrigerator and hence we find it not proper to order for replacement of the refrigerator with a brand new one. Hence after deduction of amount towards depreciation we find that the complainant is entitled for an amount of Rs.5,000/- towards cost of fridge and an amount of Rs.2,500/- as compensation along with a cost of Rs.2,500/- from the 1st opposite party. Opposite parties 2 & 3 are exempted from any liability.
In the result, the complaint is allowed and the 1st opposite party shall pay an amount of Rs. 5,000/- (Rupees Five thousand only) and Rs. 5,000/- (Rs.2,500/- + 2,500/-) towards compensation and costs to the complainant within a period of one month from the date of receipt of the order, failing which the above amounts shall carry interest @ 12%.
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 15th day of May, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
O.P.No.209/2001
APPENDIX
I. Complainant's witness: NIL
II. Complainant's documents: P1 : Photocopy of receipt No.300251 dt. 16/10/96 for Rs.10,329/-. P2 : Copy of warranty card dt. 17/10/96 P3 : Copy of bill No.252 dt. 16/2/1998 P4 : Copy of advocate's notice dt. 27/3/2001 P5 : Acknowledgment card dt. 27/3/2001 P5(a) : Postal receipt dt. 27/3/2001 P6 : Copy of bill No.A-305479 dt. 5/5/2001 of Electricity Board. P7 : Copy of bill No.VP.No.4398307 dt. 3/3/2001 P8 : Photocopy of cash memo No.4250 dt.15/6/2000 P9 : Copy of bill No.750 dt. 20/6/2000 P10 : Bill No.G-239730 dt. 2/1/2002 issued by opp.party
III. Opposite parties' witness: NIL
Opposite parties' documents:
D1 : Original service call/cash memo No.6214 dt. 2/4/01. D2 : Copy of reply notice dt. 17/5/01 issued to opp. Party
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
