DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 22nd day of April, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of Filing: 25/01/2021
CC/38/2021
Rajani K.V.
W/o Padmanabhan,
Arathi Nivas, Alanallur PO
Palakkad – 678 601
(By Adv. K. Dhananjayan) - Complainant
Vs
- The Proprietor / Manager
Janatha Home World,
Joy Tower, Perinthalmanna PO,
Malappuram District – 679 321
- M/s.Haier Appliances (I) Pvt.Ltd.
Plot -1, Building No.1,
Okhla Industrial Area, Phase III,
Delhi – 110 020
- M/s.Haier Appliances (I) Pvt.Ltd.
Plot -1, Building No.1,
Okhla Industrial Area, Phase III,
Delhi – 110 020
Rep.by its Manager / Managing Director /
Authorised Signatory - Opposite parties
(O.P. 1 Party in person, OP2 to 3 Exparte)
O R D E R
By Sri. Vinay Menon V., President
1. In its gist, the complaint pertains to the alleged defects suffered by a refrigerator purchased from the first opposite party and manufactured by OPs 2 & 3.
2. The complainant purchased a double door model refrigerator from OP1 on 26/5/2020 by paying Rs.28,000/-. The said refrigerator was used in accordance with the instructions given by the manufacturer. But within a week the refrigerator started malfunctioning. Eventhough the representatives of the opposite parties tried to rectify the defects, their efforts were in vain. On 4/12/2020, the refrigerator produced a breaking noise and complainant found that the freezer door made of glass was broken into pieces. Smoke emanated from the refrigerator a couple of days later. Even after continuously contacting with opposite parties they failed to rectify the damages or replace the same. The complainant is entitled to replacement of the refrigerator and incidental reliefs.
3. Opposite party 1 entered appearance and filed a statement dated 5/4/2021 purporting to be a written version. They washed their hands off any liability and stated that they had informed the authorized service centers of OP2 and sought for relieving them from procedures before the Commission. Thereafter they had not appeared before this Commission.
4. Opposite parties 2 & 3 entered appearance on 8/4/2021 but failed to file any version till 10/12/2021. They were set exparte on that date.
5. The following issues arise for consideration in the facts and circumstances of the case.
1. Whether the complainant has succeeded in proving that the refrigerator suffers
from manufacturing defects ?
- Whether the complainant is entitled to any of the reliefs sought for in the complaint ?
3. Whether there is any deficiency in service or unfair trade practice on the part of
the opposite parties ?
4. Reliefs, compensation and cost, if any?
6. Evidence on the part of the complainant comprised of proof affidavit and Exhibits A1 to A3 series. There was no contra evidence.
Issue no. I
7. Grievance of the complainant pertains to the damages suffered by her refrigerator. The reliefs sought for pertains to replacement of the defective refrigerator. In order to prove manufacturing defect of the refrigerator the complainant ought to have taken recourse to the opinion of an expert commissioner to ascertain the damages suffered by the refrigerator. The complainant has failed to do so. Ext.A1 is the invoice issued to the complainant which would not prove that the refrigerator suffers from any damage. Ext.A2 is the invoice issued to the complainant upon her purchase of a second-hand refrigerator. Ext.A3 series of photographs also would not prove the case of the complainant.
Hence, we hold that the complainant has failed to prove her case of inherent manufacturing defects, allegedly suffered by the refrigerator.
Issue No.2
8. In view of the finding in issue no.1, we hold that the complainant is not entitled to the complaint reliefs sought for.
Issue No.3
9. Be as it may, Ext.A1 is the copy of the invoice and warranty card issued by the opposite parties to the complainant upon purchase of the refrigerator. The said Haier warranty forms the basis of the relation between the purchaser and the manufacturer. Condition 14 of the warranty reads as herein below:
“14.This warranty is effected in New Delhi and claims, if any, shall be made only before the courts and jurisdiction in New Delhi and no claims shall be made against the company outside New Delhi not withstanding that the appliances may have been sold or delivered elsewhere”.
This condition is one made restraining the complainant from resorting to a legal proceeding and thereby placing fetters on the complainant from enforcing any legal rights available to the complainant. Section 2(46)(VI) of the Consumer Protection Act, 2019 deals with unfair contracts which impose on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage.
10. Condition 14 of the warranty forming part of Ext.A1, in our opinion, falls squarely within the ambit of an unfair contract rendering the complainant and those similarly placed to a disadvantage, entitling the complainant to compensation and cost.
11. We, therefore, hold that the second opposite party has resorted to unfair trade practice and is liable to compensate the complainant.
12. Since the opposite parties 2 & 3 have not appeared and contested the matter, and considering the fact that the complainant is at a disadvantage to pursue reief as against OP2 who is situated vey far away and that the first opposite party has benefited from the business transaction between the complainant and the second opposite party in their capacity as the dealer and further considering there existed a fiduciary relationship and a constructive trust as between the first opposite party and the complainant, this order is passed as against the first opposite party. The first opposite party may get indemnified from the second opposite party, in the course of their daily business as manufacturer and dealer.
Issue No.4
13. In the result we direct the first opposite party to pay to the complainant the following :
1) Compensation for entering into unfair contract
with the complainant : Rs.25,000/- .
2) Cost of the proceedings : Rs.10,000/-
The aforesaid amount shall be paid by the first opposite party to the complainant within 45 days of receipt of a copy of this order. In the event of failure, the complainant shall be entitled to solatium at the rate of Rs.200/- per month or part thereof from the date of this order till date of payment,
Pronounced in open court on this the 22nd day of April, 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Photocopy of invoice bearing No.550 dtd.26/5/2020 alongwith Haier refrigerator
warranty card
Ext.A2 - Original invoice bearing No.30 dtd.19/12/2020
Ext.A3 series – 7 photographs together with bill issued from studio and a CD.
Exhibits marked on the side of the opposite party
NIL
Witness examined on the side of the complainant
NIL
Witness examined on the side of the opposite party
NIL
Cost : Rs.10,000/- allowed as cost.
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
