Karnataka

Belgaum

CC/606/2014

Mohammad S Mulla - Complainant(s)

Versus

The Managing Director of Godrej & Boyce Mfg Co.Ltd - Opp.Party(s)

S.S.Mulla

24 Feb 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

: ORDER :

Complaint is filed by the complainant under section 12 of Consumer Protection Act 1986, alleging deficiency of service on part of opponent for selling defective washing machine.

2) O.Ps.1 & 2 appeared and filed their version denied facts and allegations in the complaint. Inspite of service of notice O.P.3 remained absent. Hence place ex-parte.

          3) Both parties have filed their affidavits and some documents are produced by both the parties.

          4) We have heard the arguments of the counsel for complainant and O.Ps. and have perused the records.

5) Whether the complainant has proved any deficiency in service on the part of the O.Ps. for manufacturing defect of Godrej Automatic Washing Machine and that the complainant is entitled to the reliefs sought?

6) Our finding on the point is partly in affirmative for the following reasons.

: REASONS :

          7) The complainant alleges that the opponent no 1 is the proprietor of ‘Godrej Appliance’ dealing with the business of manufacturing and marketing. The complainant further alleges that opponent no 2 is the dealer and retailer and engaged in the business of sale of electronics appliance manufactured by the opponent no 1 and the opponent no 3 is service provider of opponents no 1 and 2. The complainant further alleges that he purchased Godrej Automatic Washing Machine model no GWF 650 FDC from opponent no 2 which is manufactured by opponent no 1 on 09/2/2013 for a sum of Rs 16,350/- under invoice no SI004575 on the assurance given by opponent that said washing machine is of good quality and functions and good service. The complainant further alleges that within few months of its purchases it started giving frequently problems such as unwashing and rinse etc., and the complainant approached the opponent no 3 authorized service center of opponent no 1 and 2 and opponent no 3 assured of repairing the washing machine and solve the problem involved. The complainant further alleges that since 3 to 4 times same problem occurred the complainant went to opponent no 2 and 3 with compliant in machine and no person came for repair even after calling the opponent on number of times and the opponents postponed the service to the said machine. The complainant further alleges that opponent no 2 has assured the warranty of 2 years and guarantee and in case of defect found in the machine the opponent No.2 will refund the amount of the machine. The complainant further alleges that there is manufacturing defect in the machine and it cannot be repaired and opponent no 3 has not repaired the same and the machine is not suitable for use and the opponents are having knowledge of the defect in the machine and the opponents are at legal duty to provide efficient service and the opponents have sold defective washing machine to the complainant and have caused financially loss and mental harassment to the family of the complainant. The complainant further alleges that on 19/8/2014 issued legal notice to the opponents calling upon them to provide service or exchange the machine and notice is duly served to the opponents and the forum has jurisdiction to entertain the compliant as the opponent no 2 is running its business at Belgaum and prayed to allow the complaint as prayed in the compliant.

8] On the other hand opponent no 1 and 2 filed their objection. The opponent no 1 contends in his objection that the allegations are all false and liable to be dismissed and further contends that opponent No.1 is reputed company having globle recognition in manufacturing and marketing of home appliances from several decades and marketing throughout the world and having good appreciations from the consumers and have maintained good quality of outputs. The opponent no 1 further contends that the complainant has filed this complaint only to harass the opponent and make unlawful gain and relief claimed is unlawful and not maintainable. The opponent no 1 further contends that when the complainant complained of defect immediately the opponent responded to their call and registered their grievance and the engineers were duly attended and also verified and rectified the machine and opposite party representative visited the complainant’s place for verification of the machine and noticed that water pressure was considerably low and same was intimated to the complainant to get it rectify. The opponent no 1 further contends that the complainant even after instruction continued the same water flow and again the complainant called the opponent representative and complained the same defect and on 22/8/2014 when the representative visited the complainant place, the complainant resisted the representative to verify the machine and demanded new machine and copy of service report is attached herewith. The opponent no 1 further contends that there is major issue in the working of machine and same is under guarantee period and opponent is ready to rectify the problem in the machine if any. The opponent no 1 further contends the complainant may be put to strict proof of the allegations made in the compliant and denies that there is deficiency of service on the part of the opponent no 1 as they have not sold defective washing machine to the complainant as alleged in the complaint and prayed to dismiss the complainant.

9] On the other hand the opponent no 2 further contends that, allegations in the compliant are categorically denied and that opponents are doing respective businesses are admitted and opponent no 2 admits the purchases of washing machine from the opponent no 1 for the price of Rs 16,350/- under invoice no SI004575 from the opponent on 09/2/2013 and denied other allegations of para no 2 and 3. The opponent No.2 further contends that it is false that the machine started giving problem within few months of purchase and admitted that on receipt of complaint from the complainant forwarded the same to the opponent no 3 Authorized service center of opponent no 1 and denies that service was postponed  and admits that machine comes with two years warranty. The opponent no 1 further contends and denies that this opponent never assured to refund the entire amount towards non service or defect in the machine and further contends that after receipt of compliant from the complainant the opponent no 3 attended the problems and identified an issue with the water inlet valve which was not getting  sufficient pressure due to low height of water tank at the complainant house and to maintain good relationship this opponent replaced the same but subsequently the complainant made same allegation of problem. The opponent no 2 further contends that the tank for flow of water to machine have to be increased to minimum of 13 feet and same was brought to the knowledge of the complainant and explained by the technician of opponent no 1 and 3 and the complainant has mischievously concealed these facts and hide his lapses and omissions. The opponent no 2 further contends that even after offering service of machine to the satisfaction of the complainant but the complainant is not agreeing to the same and demanding the refund of amount of the machine. The opponent no 2 further contends that as good gesture the opponent is still ready and willing to repair the washing machine if ordered by the forum and this opponent prays to dismiss the complaint as there is no deficiency of service on his part and award Rs 10,000/- as per provision of C P Act.

10] The opponent no 3 placed ex-parte as he did not appear even notice came to served to him sent by the forum. The complainant has filed his Evidence in form of Affidavit and certain documents are produced and so also the Opponents No.1 and 2 produced Evidence in form of Affidavit and certain documents are produced. Now the points for our consideration are that :

Point No 1: Whether the complainant has proved that the opponent no 2 has sold defective washing machine manufactured by the opponent no 1?

Point no 2: whether the complainant has proved the deficiency of service on the part of opponents ? and

Point No 3: Whether the Opponent No 1 and 2 have proved that there was no manufacturing defect in the washing machine purchased by the Complainant and the problem was properly attended by the opponent no 3 the service center of Opponent no 1 and 2?

Point No.4 : As per final order.

 

11] Coming to the Point No 1 & 2: No doubt that the complainant has purchased the washing machine of Godrej Company from the opponent no 2 and it is also admitted by the opponent no 2 that the complainant has purchased the machine as alleged in the compliant which was manufactured by the opponent no 1, but the opponent no 1 and 2 have denied the defect in the machine and that there is manufacturing defect in the machine, but as alleged by the complainant that after few months of the purchase of the said washing machine it started giving problem in washing and rinsing and this fact was brought to the notice of the opponent no 2 and that opponent no 2 have sent technician from the service center that is opponent no 3 and the opponent no 1 has contended in his affidavit at para no 6 on page 2, states that ;

“I say that when the complainant has complained about the defect in working of the subjected machine, the representative of the Opposite party has immediately responded to their call and registered their grievance and the engineers were duly attended and also verified and rectified the machine to the full satisfaction to the complainant. I say that while the opposite party representative visited the complainant’s place for verifying the machine, they noticed that the water pressure was considerably low, same was intimated to the complainant and also advised them to rectify the same”.

12) The opponent no 1 has contended in his affidavit at para No. 7 on page 2, states that;

“I say that inspite of advice given by the opposite party representative, the complainant continued to operate the machine with the same water flow which is not adequate for the fully automatic Machine. I say that once again the complainant called the opposite party representative and complained with the same defect. I say that as per the warranty terms that “defects are caused by the improper use as stated above. With a great concern and to secure the consumer interest the opposite party representative visited the complainant’s place for verification wherein the complainant resisted the opposite party representative to verify the machine and further demanded for the new machine and also endorsed on the same on the service report copy of the service report is marked herewith as Exhibit P 1”.

13) On perusal of above para one point is clear that there was some problem in the machine and same was attended by the opponent No.3 representative. And also that again the problem arosed even after it was resolved as per the contends of affidavit para no 7 mentioned supra. Hence we are of the opinion that as alleged by the complainant in his complaint the washing machine was giving problem frequently and it also the compliant of the complainant that the problem started with few months of its purchase and same was attended by the opponent No 3. Therefore the allegations made by the complainant in regards to the defect in the machine has to believed and accepted. And on the other hand there are statement in the contents of the para no 6 and 7 of the affidavit filed by the opponent no 1, that on one pretext the opponent no 1 says that they have attended and resolved the problem and on the other pretext opponent no 1 at para 7 the  complainant resisted the opponent representative to verify the machine at the second call by the complainant, by it self we can make it out that there was continues problem in the machine aroused ever after it was resolved by the representative of the opponents 1 and 2. Hence we are on the opinion that even believing for the sake for argument that the complainant resisted the opponent representative and endorsed on the service report asking of replacement, is for the problem which the machine was having even after it was as per the version of the opponent no 1 was attended and solved, it would be correct on the part of the complainant who demanded the replacement of new machine and we are of the opinion that it is right of the complainant to demand new machine in place of defective machine and that to which is within the warranty period. Therefore the complainant has proved that there is manufacturing defect in the washing machine.

14) Coming to the contents of the opponent no 1 and 2 that the complainant has not given proper water pressure to the washing machine and the water tank is shifted to the low, hence the machine is giving problem. To resolve this argument of the opponent no 1 and 2 we have go through and glance the user manual produced by the complainant which is the booklet of the opponent no 1 issued to the  complainant, at last page no 36 of the booklet under head “INSTRUCTIONS FOR THE CUSTOMER” where in we can directly go to point no 8 which reads as ;

        “Water supply required above 0.5 bar i.e.  7.25 PSI to operate the Semi Automatic washing machine. Without this, company shall not be able to install the product”.

          By reading this instruction point no 8 mentioned supra, one thing is clear that before installing the product the opponents or his representative shall see that the required water supply is to be 7.25 PSI. By this we understood that before installing the product the water supply has to checked and with which company shall not install the product. Hence in the present complaint on hand all along we see that by reading the objection the opponents no 1 and 2 have contended that, the water level attached to machine of the complainant is very low, and not at the height of 13 Feet, that means before installing the product in the house of the complainant, the representative or the engineer ought to have observed and according to their manual without proper pressure the company shall not install the product. Therefore in this complaint the opponent must have visited before installing the machine in the house of the complainant, at that time what restricted the opponent to inform the complainant that water pressure is not up to mark and the opponent cannot install the product until the water supply is to the proper height or required height. Hence the contention of the opponent no 1 and 2 there was no proper pressure of water supply to washing machine and the tank was very low and due to the washing machine was giving problem to the complainant and there is defect in the machine cannot be believed and accepted. Hence we answer the points No. 1 & 2 in affirmative.

15] The complainant has produce in all 7 document, one of the document styled as Legal Notice By Regd Post Ad issued by the Jayakumar. B  service manager, Bangalore addressing to 3 of the in which on 2^nd no is the complainant and in the said notice the manager has admitted that there were three complainants registered by the complainant on different dates. Hence we have to see the date of purchase of the product by the complainant which is dated :9/2/2013 and first complaint was attended by the opponent was within 3 to 4 months of its purchase and as per the notice averments we can see that there are more than 3 complaints registered with opponent. Therefore the allegation of the complainant that there is manufacturing defect in the machine since from beginning has to be believed and accepted.

16) Coming to the point No.3 as noted supra, we have already discussed in detail in points No.1 and 2. Hence to avoid repetition of facts the point No.3 is answered in negative.

17) The complainant has relied on reported rulings I (2009) CPJ 511 of Hon’ble West Bengal State Commission passed in between Godrej & Boyce MFG. Co. Ltd. & others. V/s. Tanmay Roy & others. Wherein the Hon’ble State Commission have held that;

Consumer Protection Act, 1986-Sections 2(1)(f) and 2(1)(g)-Goods-Defective-Problem continued after repairs-Replacement of defective washing machine with new one or refund of purchase price directed by Forum-Hence appeal-Contention regarding mishandling/improper use of machine by complainant not proved by any evidence on record-Order of Forum upheld.

                                                                   (para 6,7)

2) I (2009) CPJ 564 Delhi State Consumer Disputes Redressal Commission, New Delhi, in between Endolite India Limited V/s. Reena Aggarwal, Wherein the Hon’ble State Commission have held that;

Consumer Protection Act, 1986-Section 2(1)(f)-Goods-Defective-Artificial limb highly defective-Frequent requirement of repairs and change of socket leads to conclusion about its defectiveness-Complaint allowed by Forum-Hardship, mental ……Goods if having defects which causes inconvenience and discomfort, manufacturer/dealer to be visited time and again, goods have to be declared defective-Mere allegation of defect is sufficient-Onus to prove contrary lies on manufacturer-Order of Forum upheld.

In the present case on hand the complainant has made allegations that Washing Machine is repeatedly giving problems and the opponents on number occasions visited to resolved problems but the problem remained as it is. In the above orders of the Hon’ble State Commission noted supra, that one who makes the allegations that there is no defect in the manufacturing has to prove and in the said case the opponents have contended that the complainant has not properly use the machine and the water supply to the machine is not proper and is on the low hence the machine is giving problems in washing and also that the opponents have not proved their allegations on the complainant. Hence the onus of proof lies on the manufacturer who is opponent No.1 in this case. Hence the citations relied by the complainant are applicable to present case on hand.

18) On the other hand the opponents have relied ruling reported in I (2010) CPJ 235 (NC) and III (2011) CPJ 42 (NC). The opponent by relying on these rulings argued that the complainant has failed to prove the manufacturing defect by expert report. But infact the opponents contention that the complainant has mishandle the use of washing machine and no proper supply of water as per the instruction, are not been proved by any documentary evidence of even their representatives or service centre has not putforth any contention. Therefore the opponents have utterly failed to prove that there is no manufacturing defect in the washing machine purchased by the complainant. Hence the ruling relied by the opponents are not applicable to present case on hand.

19) Point No.4; in discussion to point No.1 to 3, we pass the following order.

: ORDER :

The complaint is partly allowed.

The Opponents are hereby directed to pay to the complainant Rs.16,350/- with interest at the rate of 8% P.A. from the date of filing that is 08/09/2014 till realization of the entire amount.

The opponents are hereby directed to pay a sum of Rs.3,000/- toward compensation for mental and physical harassment etc.,

The opponents are hereby directed to pay a sum of Rs. 2,000/- toward costs of the proceedings to the complainant.

         The Order shall be complied within 30 days from the date of the order.

The complainant is hereby directed to return the washing machine to the opponent No.2 immediately after compliance of the order within stipulated period.

(Order dictated, corrected & then pronounced in the Open Forum on this 24^th day of February 2016)

Member            Member                    President

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