IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

            Dated this the   21^st   day of August 2018

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

       Sri. M.Praveen Kumar,Bsc, LL.B ,Member

       CC.No.208/17

Remesh Kumar                                          :         Complainant

S/o Peethambaran Pillai

Sree Sabari(Perungattu), Kalari-Panmana

Chavara P.O, Kollam-691583

V/s

1. The Manager                                    :         Opposite Parties

          M/s B B Enterprises

         Market Road, Karunagappally-690518

         [By Adv.Mohammed Azim.A]

2. The Managing Director

           Godrej & Boyce Manufacturing Co. Ltd.

          Pirojsha nager-Vikhroli, Mumbai-400079

FAIR ORDER

E.M.MUHAMMED IBRAHIM , President

                This is a case based on a consumer complaint filed under Section 12 of the Consumer  Protection Act praying to direct  the opposite parties to substitute the defective washing machine or to repay bill amount together with compensation.

The averments in the complaint in short are as follows.

          The complainant on 25.08.15 purchased a Godrej Washing machine (S/L No.WT.600L.4K 05 A 7) from the 1^st opposite party seller that at the time of payment of sale consideration of Rs.12250/- the 1^st opposite party provided warranty for 12 months.  2^nd opposite party  is the manufacturer of the washing machine sold by the 1^st opposite party.  However after 8 months of its running the said washing machine developed working complaint and the same was brought  to the notice of the 1^st opposite party.  There up on the authorised service technician inspected  the  washing  machine and  rectified the defects by

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replacing in take valve.  Subsequently on 20.12.16 and 13.04.17 the same complaint occurred and authorised service technician rectified the defect by replacing the intake valve .

After solving the above complaints on June 2017 the washing machine again failed to work due to error in operation.  On getting information the technician verified and intimated the complainant to replace main PCB.  Accordingly  the complainant replaced the same and rectified the defect on 17.06.17.  At the time of the last repair the technician  advised the complainant to renew the warranty period by remitting Rs.3000/- for solving these type of complaints in future.  Again the washing machine remains not working from 10.07.17.  Since  the washing machine  is totally unusable within the warranty  period the complainant  has demanded the opposite parties to replace a new washing machine.

          The complainant has purchased  the washing machine for his daily use.  But it could not be used even for two months.  Hence the opposite parties are bound to substitute a brand new washing machine in exchange of the un serviceable one or to refund the bill amount   together with compensation to the  tune of Rs.10000/- for selling defective washing machine and also for the mental agony suffered by the complainant along with costs of the proceedings. 

Opposite party No.2 remains exparte.  Opposite party No.1 entered appearance and filed a written version by raising the following contentions.

The complaint is not maintainable either in law or on facts.  However the 1^st opposite party would admit that he is a retail dealer and the complainant has purchased the washing machine from the 1^st opposite party shop and that the 2^nd opposite party  arranged authorised service technician who cured the defect.  Again the washing machine became defective on 17.06.17 as there was complaint  on  the  main  PCB  and that defect was  also  cured  by  the  service

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technician.  As the authorised technician has reported that the washing machine was having major defects and continuous complaint it cannot be used.  According to the 1^st opposite party he intimated the fact to the 2^nd opposite party and  requested to replace the defective washing machine.  As the washing machine has become defective on several occasion within the warranty period and the authorised technician cured the defect,  the 1^st opposite party convinced that the washing machine is having manufacturing defect and therefore the 2^nd opposite party is to replace the washing machine and  the circumstances  it is to be considered that there is no deficiency in service on the side of the 1^st opposite party who is only a retail dealer and he has to be exonerated from  liability and at the same time he request the forum to take action against the manufacturing company(2^nd opposite party).

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

1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainant is entitled to get the relief as prayed for?
3. Reliefs and costs.

Though the 1^st opposite party filed written version disputing the claim of the complainant against him he has not participated with the trial when the case was included in the list for trial. On 05.06.18 when the case was taken up for recording evidence the opposite party and his counsel was absent and there was no representation even.  Hence the 1^st opposite party also set exparte.  The complainant  filed proof affidavit and got  marked  Ext.P1, P2 series, P3 and P4 documents. 

Heard the counsel for the complainant.

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Point No.1&2

          For avoiding repetition of discussion of materials these two points are considered together.

          The unchallenged averments in the proof affidavit filed by the complainant coupled with Ext.P1 invoice would establish that  the complainant has purchased one Godrej Washing Machine for Rs.12,250/- from the 1^st opposite party dealer.   The  1^st  opposite party  who  filed  written  objection would also admit the fact that he is a retail dealer of Godrej  Washing  Machine and  on 25.08.15 the complainant had purchased one Godrej Washing Machine from his shop as per Ext.P1 invoice and 24 months warranty has been given to the washing machine.  The 1^st opposite party would further  admit  that  the 2^nd opposite party is the manufacturing company and  according to 1^st opposite party all the grievance relating to the defect of the product and also the complaint in respect of the warranty has to be  raised before the 2^nd opposite party.  But it is well settled that both the manufacturing company and the retail dealer are equally liable for the sale of defective product.

          The averments in the affidavit would further establish that the washing machine purchased as per P1 invoice from the 1^st opposite party worked only for about eight months and there after the machine developed complaints.  Hence the complainant  brought the machine to the 1^st opposite party and later it was inspected by the authorised technician and rectified the mistake by  replacing intake valve.  Subsequently on 20.12.16 and 13.04.14 the same complaint occurred and the authorised service technician rectified the mistake by replacing in take valve.  The above case of the complainant stands proved by Ext.P2 complaint rectification receipt issued by the  authorised service technician.  The unchallenged averments in the affidavit coupled with Ext.P1 and Ext.P2 documents along with the admission of the  1^st opposite party  in his

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written version would indicate that within 24 months warranty period  the  washing  machine remains not working from 10.07.17 onwards and it has become totally un usable within the warranty period.  The unchallenged averments in the affidavit would further establish  that the complainant caused to sent Ext.P3 notice to the 1^st  and 2^nd opposite party intimating the defect of the product and also calling up on them to replace the faulted washing machine by substituting a new one.  Ext.A3 copy of lawyer notice and A4 series postal receipt would substantiate the above claim of the  complainant.  It is also clear from the available materials that none of the opposite parties  sent any replay nor cured the defect or replaced the defective washing machine by substituting a new one of the same nature.     

In view of the  materials available on record it is clear that there is deficiency in service on the part of the 1^st and 2^nd opposite party.  As the 1^st opposite party is the retail seller of the washing machine  manufactured by the 2^nd opposite party both are equally liable to replace the defective washing machine and pay compensation to the complainant for the mental agony and monitory loss caused the complainant due to the non functioning of the washing machine within the  warranty period.  These two points answered accordingly.

          In the result the complaint stands allowed in the following terms.

The opposite party No.1&2 are directed to replace the defective washing machine with a brand new washing machine of the same brand, nature quality and price within  45 days  from the date of this order.

The complainant is directed to produce the defective washing machine within 3 weeks from today at the retail shop of the 1^st opposite party and on receipt of the defective washing machine the 2^nd opposite party directed to issue

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a receipt acknowledging the production of defective washing machine and also replace the same  either by himself or through the 2^nd opposite party which  manufactured the washing machine or by both within the next 3 weeks failing which the complainant is allowed to realise Rs.12,250/-  with interest @ 12%  per annum from the date of complaint till realisation from  opposite party No. 1&2 and from their assets. 

The opposite party No.1&2 also directed to pay Rs.5000/- as compensation and  Rs.3000/- as costs of the proceedings to the complainant within the said 45 days failing which the complaint is allowed to realise the compensation with interest at the rate of 12% per annum from the date of complaint till realisation with costs Rs.3000/- as ordered above from  opposite party No.1&2 from their assets.

Dictated to the  Confidential Assistant  Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the    21^st  day of  August 2018.   

         E.M.Muhammed Ibrahim:Sd/-

                    M.Praveen Kumar:Sd/-

                   Forwarded/by Order

                                                                                          SENIOR SUPERINTENDENT

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1                  :         Retail Invoice dated 24.08.15

Ext.P2                  :         Photocopy of service technician report(4 Nos)

Ext.P3                  :         Copy of registered letter

Ext.P4                  :         Postal receipts 2 Nos.

Witness examined for the opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

                                                                                    M.Praveen Kumar:Sd/-

                                                                                   Forwarded/by Order

                                                                                  SENIOR SUPERINTENDENT