BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.83/2018

Date of filing: 18/07/2018

Date of disposal: 16/03/2019

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) to claiming re-place the new Refrigerator in place of defective machine with same model and pay Rs.50,000/- towards compensation for mental agony, harassment and pay Rs.25,000/- towards the expenses of this complaint.

2.      The facts of the case in brief are that;

           It is the case of the complainant is that, on 27.03.2018 the complainant had purchased the refrigerator from OP.No.1 under tax invoice No.926 for Rs.18,000/-, the same is manufactured by the OP.No.2 and OP.No.1, who is the Authorized Dealer of OP.No.2. After purchasing the above said Refrigerator, the complainant has operated the said machine as per the guidelines issued by the Ops Company. But, within the span of four days, unfortunate Refrigerator machine its cooling system and water linkage problem was found, on this occasion, the complainant has complaint to OP.No.1 to repair the same and OP.No.1 send technician person who visited to complainant home in the month of April 2018 and check Refrigerator machine and get repaired. Thereby complainant started using the said machine, but once-again in the same month of April 2018 third week, the same problem was repeated and again complainant was made complaint to Op.No.1 and thereby once again technical person visited to complainant home and checked the machine and changed the Mother Board of the said refrigerator and further again in the month of May 2018, same problem was occurred, then the complainant has took machine to OP.No.3 shop who is authorized service center of the OP.No.2 for repair and endorsement has been issued by OP.No.3 on dtd: 09.06.2018, but he has not providing any service to get repair the said machine, which it is duty to repair and also not made any afford to remove defective parts.  

          Finally on this occasions, the complainant has issued legal notice to the Ops on dtd: 25.06.2018 and demanded to replace the new refrigerator. But, Ops have not made any effort to reply the said notice till today and further all efforts of contacting OP.No.3 who is the authorized dealer of OP.No.2 products and even the registered notice sent to the said Ops they were not responding. The complainant had purchase such a big refrigerator, because of his huge family. But right from the beginning, the said refrigerator just gave trouble and caused physical, mental and financial problem and complainant all his efforts to get his refrigerator repaired were failed and the OP.NO.1 & 3 are crystal clear instances of unfair trade practice and deficiency of service to the complainant. Hence, complainant has constrained to file this complaint.

3.      After issue of notice to the Opponents, the OP.No.2 has appeared through his counsel and OP.No.1 & 3 have neither appeared nor filed any version before this Forum, inspite of giving sufficient time. The Hon’ble District Forum considered the OP.No.1 & 3 are placed Ex-parte and OP.No.1 contended that, the complaint is baseless, devoid of any merit whatsoever and without any cause of action against OP.No.2, as such the complaint is liable to be dismissed with costs.  

It is OP contended that, the complainant has purchased the refrigerator on 23.03.2018 and within 3 days he has noticed cooling problem in the said refrigerator and he made a service request during the month of April 2018 on two occasions and once they have changed motherboard and further he noticed once-again the same problem in the month of May 2018 and he re-delivered the Refrigerator to the Service center as per endorsement dtd: 09.06.2018, the answering the OP denies all the allegation made in the complaint that, no efforts is made by the service center to remove the defect in the refrigerator.

The OP.No.1 further contended that, as per the service record maintained by Ops, the complainant registered 1^st service call on 03.05.2018 after gap of 2 months from the date of purchase of refrigerator reporting over cooling vide service order No.4259725868. After diagnosing the issue, the service engineer replaced the Thermostat. However, again the complainant reported over cooling on 23.05.2018 vide service order No.4261047131 and Thermostat is replaced and
re-done the electrical wiring for normal function. In fact, after replacing Thermostat as well as wiring, the refrigerator is kept under observation and noticed normal function, later the product is delivered to the complainant. However, within few days from the date of delivery of the refrigerator, the complainant alongwith the dealer has returned the refrigerator on 09.06.2018 and demanded acknowledgement for taking delivery of refrigerator from him. As such the service center issued handwritten acknowledgement acknowledging the receipt of product from the customer. In fact, the complainant had bad intention to returned the refrigerator on 09.06.2018 and now he alleges before this Forum that, the reported issue is not resolved by the Ops and further the intention of the complainant is manifest from the prayer column itself. No cause of action has arisen to file this complaint etc., hence Op.No.2 has prayed for dismiss the complaint with cost.

4.      In support of the claim in the complaint, the complainant has filed his affidavit and produced five documents, which are as under;

5.      On the other hand OP.No.2 has filed his affidavit on behalf of this case and produced two documents which are as under;

Based on the above materials, the following points arises for adjudications are as follows;

1.  Whether the complainant has proved that, there is negligent and deficiency of service on the part of Ops for not replace the refrigerator or refund the cost?

2. What order?

6.      Answer to the above Points:-

1.  Partly Affirmative.

2.  As per final Order.

R E A S O N S:-

7.      Point No.1: After perusing the evidence of both parties and scanning the written argument of OP.No.2, it is evident and admitted fact that, the complainant has purchased the refrigerator from Op.No.1 for Rs.18,000/-, the same is manufactured by the OP.No.2 in this respect the complainant has produced invoice receipt No.926 which is marked as Ex.P-1, which is not in dispute. It is also not in dispute that, the complainant is a consumer as is defined under the provisions of the C.P. Act 1986.  

          Now the case of the complainant is that, the said purchase refrigerator with one year conditional warranty as per warranty card which is marked as Ex.P-3 and further case of the complainant that, within four days from the date of purchase the refrigerator started giving problem on cooling system and water linkage and the same has been compelled to OP.No.1 on April 2018 and OP.No.1 technician person check refrigerator machine and get repaired and the said machine has been using the complainant and once-again in the month of April 2018 third week same problem was occurred in the said machine and again complainant compelled the OP.No.1 and OP.No.1 technician person check refrigerator and changed the motherboard. But, even the said Refrigerator was not working properly and further on dtd: 09.06.2018 the complainant sent the said refrigerator for repair to OP.No.3 shop, who is the customer service provider of the OP.No.2 and OP.No.3 has handed over the same and issue endorsement on dtd: 09.06.2018 which is marked as Ex.P-2, but he could not solve the problem and he could not identify and rectify the same, then complainant has issued legal notice to OP.No.1 to 3 on dtd: 25.06.2018 demanding the replacement of the said refrigerator or refund the cost which is marked as Ex.P-4.

The case of the Ops that, the complainant registered 1^st service call on 03.05.2018 after gap of 2 months from the date of purchase of refrigerator reporting over cooling vide service order No.4259725868. After diagnosing the issue, the  OP.No.3 service engineer replaced the Thermostat which is marked as Ex.R-1. However, again the complainant reported over cooling on 23.05.2018 vide service order No.4261047131 and Thermostat is replaced and re-done the electrical wiring for normal function which is marked as Ex.R-2. In fact, after replacing Thermostat as well as wiring, the refrigerator is kept under observation and noticed normal function, later the product is delivered to the complainant and told that, after replaced the Thermostat, there will not be any problem, believing in the words of the OP.No.3, the complainant has using the said refrigerator, but once-again the same problem has been continued to the said refrigerator and further the complainant has told that, beginning from the date of purchase, it found repair which it is not get repair, even get repair for two times, the same problem has been occurred continued in the said refrigerator and further on dtd:09.06.2018 the complainant has sent the refrigerator to the OP.No.3 service center for repair and the same has been handed over to the OP.No.3, but he did not making any effort to remove the defective parts till today. Thus, by selling defective refrigerator and by not providing proper service, these attitude and acts of the Ops, it clearly shows that, the OPs have committed deficiency of service and un-trade practice and further the OP himself admitted that, after replacement of  Thermostat part towards over cooling problem of refrigerator, then how the said refrigerator stopped as not worked, the complainant intentionally dumped his refrigerator after 2^nd service and moved this frivolous complaint and seeking reliefs towards refund of cost or replacement of said refrigerator. For that proposition, the OP.No.2 has relied some decisions are as under;

1. I (2011) CPJ 254 (NC).
2. III (2000) CPJ 544 Hon’ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram.
3. Revision Petition No.3973 of 2012 Hon’ble National Consumer Disputes Redressal Commission, Newdelhi.
4. Revision Petition No.4803 of 2012 Hon’ble National Consumer Disputes Redressal Commission, Newdelhi.

The above said relied decisions are not helpful to the instant case. After going through, the pleadings of the both parties, it is clear that, the replaced Thermostat part by the OP was having some problem and the said problem has not been rectified by the OP.No.3 and the same problem has been occurred continuously in the said refrigerator, this fact is proved by the complainant by leading affidavit evidence and material documents of complainant. When the OP has replaced the Thermostat part it means that, the said Thermostat is defective well knowingly by the OP, the said Thermostat has been replaced that itself is suffice to hold that, deficiency of service on the part of the OPs.

Therefore, in our consider opinion that, the OPs have not rectifying or replacing the said Thermostat part towards over cooling problem of the said refrigerator. Due to this, the complainant has suffered lot of hardship. So, we are of the considered view that, it would be just and proper to allow the complaint, by directing the OPs to refund the cost or replace the said refrigerator to the complainant, the defunct refrigerator wherever kept be returned to manufacturer and further we directed to Ops are jointly and severally to pay the compensation of Rs.2,000/- towards mental agony and Rs.1,000/- towards cost of the proceedings. Accordingly, we answer this Point No.1 in partly affirmative. Hence, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.

2. The OPs jointly and severally are directed to refund the cost or replace the said refrigerator to the complainant, the defunct refrigerator wherever kept be returned to manufacturer.

3. Further, the OPs jointly and severally are directed to pay a sum of Rs.2,000/- towards mental agony and Rs.1,000/-  towards cost of the proceedings to the complainant.
4. The OPs jointly and severally granted 10 weeks to comply this order, failing to which the complainant shall entitle to get interest @ 6 % p.a. on cost of the refrigerator from the date of this order till realization.
5. Send the copies of this order to the parties free of cost.

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  16^th day of March, 2019).