By Smt. Padmini Sudheesh, President The averments in the petition are as follows: The petitioner purchased a double door freezer serial No.0003037 Model No.OFR58155 from the respondent for a consideration of Rs.19,000/- in the month of March 2000 Since the compressor of the freezer found to be defective it was returned to the respondent without any objection. No defect was found to have been detected by respondent at the time of acceptance of the freezer. No inspection note was prepared to show any defect. According to the terms and conditions of purchase the respondent has to return Rs.14,250/- deducting 15% fro m the cost of first year and another deduction of 10% for the second year. The respondent is liable to return Rs.14,250/- after deducting 25%. According to the petitioner the freezer was returned to opposite party without any defect and they have accepted without any objection on 21/3/02, before completion of 2 years from the date of purchase. Lawyer notice sent on 25/5/02. After receiving the notice a Cheque No.827768 dated 17/4/02 drawn on State Bank of Travancore, Agri. DEV.Branch for an amount of Rs.9,775/- along with a letter stating that the amount covered in the Cheque is after deducting depreciation and repairing charges. The freezer at the time of return by the complainant and acceptance by respondent was absolutely in serviceable condition. No inspection or survey of the freezer was conducted by respondent. Since the freezer was serviceable at the time of acceptance by respondent, the respondent has no right to deduct repair charge. The deduction of huge amount itself shows that there is unfair trade practice. Hence this complaint filed for the amount of Rs.14,250/-. Respondents case in brief is as follows: 2. The complainant purchased a freezer is not correct. It was by an agreement , the freezer has been entrusted with the complainant to sell the product manufactured by the respondent. The freezer remained as the property of the respondent. A returnable security deposit of Rs.19,000/- was received by the Company. It has been agreed by the complainant that the security deposit is liable to be returned only if the freezer is returned in proper condition and also after deduction of 15% of the value of the freezer during the first year and 10% during the second year. Depreciation is out of the value of the freezer and will deduct from the security deposit. It was not sale. For a sold freezer there need not be any security deposit. It is not true that the complainant returned the freezer without any defect. The respondent spent an amount of Rs.3, 600/- to repair the freezer. This amount is to be paid by the complainant. After deduction the respondent has to return Rs.9,225/- which includes the repair charges also, and a cheque is issued for Rs.9775/-. The respondent has not violated any conditions of the agreement. There is no unfair trade practice. Hence dismiss the complaint with costs. 3. Points for consideration are 1)Whether the petitioner is a consumer? 2)Whether there is any deficiency of service on the part of respondent? 3)Whether the petitioner is entitled to get Rs.14,250/- as prayed? 4)Reliefs and costs. 4. The evidence consists of Exhibits P1 to P5 and Exhibits R1 to R4 and the deposition of RW1. Point No.1 and 2 5. The 1st and 2nd points are to be considered together. 6. According to the petitioner the transaction between him and the respondent company is a sale. The respondent contended that the dealing is not come under sale and only on the basis of an agreement the freezer is transferred to the petitioner. On going through the Ext.R1 agreement it can be seen that the transaction is not a sale at all. It is stated that the dealer agrees to pay the principal a total sum of Rs.19,000/- as interest free security deposit only, not as consideration. So there is no sale of freezer. As per clause 3 of Ext.R1 ownership is not transferred. There is only an arrangement as per agreement. 7. But as per the terms of Ext.R1 the security deposit is liable to be returned only if the freezer is returned in proper condition and also after deduction of 15% of the value of the freezer during the first year and 10% during the second year. It is specifically noted that the depreciation is out of the value of the freezer and will deduct from the security deposit. According to the petitioner since the compressor of the freezer found to b e defective it was returned to the respondent. At the time of acceptance of the freezer no defect was found to be detected and no inspection note was prepared. According to the respondent company they had spent an amount of Rs.3,600/- to the repair of the same. This amount is liable to pay by the petitioner. But the petitioner stated that since the freezer was serviceable at the time of acceptance by the respondent, the respondent has no right to deduct repair charge. According to the petitioner there was no need to impose such charge for repair. Ext. R1 to R4 is marked on the part of respondent. And the marking of Exts. R2 to R4 is objected by the counsel for the petitioner on the ground that for what defects repairing is done are not noted in the documents. It is also true. On perusal of Exts. R2 to R4 it cannot be understood that for what defects repairing is done. So these documents cannot b e admitted in that aspect. 8. The Manager of respondent company is examined as RW1. He has deposed that at the time of acceptance of the freezer it was not in a working condition. He also deposed that, but it was not written down and only after two days this matter is informed. There are four clerical staffs in his company and no piece of letter is sent to the petitioner stating the facts. He also deposed that no charge is stated before repair and no quotation is invited for repair. Moreover the defect to the product is also not informed to the company by the respondent. RW1 also added that the defect caused to the product is manufacturing or from usage is unknown to him. It may be manufacturing or otherwise. There is no evidence to blame the petitioner for the defect. So imposing the repairing charges on the shoulder of petitioner is not correct. Guarantee card which is cogent evidence is also not produced. From the above reasoning it can be concluded that there is deficiency of service and unfair trade practice on the part of the respondent. So the petitioner is entitled for the amount of Rs.14,250/-. The first point to be decided is whether the complainant is a consumer. The respondent contended that he is not a consumer. Here the petitioner used the freezer exclusively for the purpose of selling the products of the respondent company and the earning from which is the livelihood of petitioner. During the cross examination RW1 has deposed that According to him the petitioner has another business. But there is no evidence to establish it. The petitioner is a consumer and there is deficiency of service on the part of respondent company. 9. In the result the petition is allowed and the respondent is directed to pay the balance amount of Rs.14,250/- (Rupees Fourteen thousand two hundred and fifty only) and also directed to pay compensation of Rs.2000/- (Rupees Two thousand only) and Rs.500/- (Rupees Five hundred only) towards costs. Time for compliance one month. Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open forum this the 16th day of May 2008.
