BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 110/2008 Filed on 22/05/08

Dated: 15..07..2010

Complainant:

J. Hari Kumar, Lakshmi Nilayam, Koovalassery Post, Maranalloor, Thiruvananthapuram.

(By Adv. Girish Kumar. A.G)

Opposite parties:

1. The Proprietor, Whirlpool Authorized Service, Unique Services, 4/715, NMH Building, Kallambalam, Balaramapuram, Thiruvananthapuram.

   (By Adv. Rajmohan. G.J)

2. The Managing Director, Whirlpool of India Ltd., Cochin.

(By R. Padmaraj)

This O.P having been heard on 05..06..2010, the Forum on 15..07..2010 delivered the following:

ORDER

SMT. BEENA KUMARI. A., MEMBER:

The complainant had purchased a Whirlpool Washing machine from CSD, Pangode Canteen manufactured by the 2^nd opposite party, that the 1^st opposite party is the authorized servicing agency of the 2^nd opposite party. The complainant while using the Washing Machine encountered certain complaints regarding its working and handed over the washing machine for repair and servicing to the 1^st opposite party on 29/11/2006 and the same was acknowledged vide repair and claim Form No. 681. Inspite of the complainant's repeated personal visits to the service shop of the 1^st opposite party they have failed to return the said washing machine after rectifying the defects. Instead the 1^st opposite party are putting forward lame excuses on each occasion and has purposefully and willfully delayed the repair and service of the washing machine nor returned the same in the condition as handed over to them. The complainant has sent a legal notice to the 1^st opposite party on 2/07/2007 asking them to return the washing machine with or without rectifying the defects. The said notice was acknowledged on 3/07/2007 but however they have not responded to the same. Through the legal notice the complainant has specifically demanded the return of the washing machine with or without repair. Inspite of the said specific demand the 1^st opposite party has failed to return the washing machine. The failure of the 1^st opposite party in returning the washing machine has resulted in the non use of the washing machine since 29/11/2006 and has resulted in considerable loss, hardship and mental agony to the complainant which cannot be equated in terms of money. The action of the 1^st opposite party amounts to gross deficiency of service for which they are liable to compensate the complainant. Hence this complaint.

2. The 1^st opposite party is the authorised service centre of the Whirlpool Product. 2^nd opposite party is the Managing Director of Whirlpool India Ltd. Both opposite parties filed their version. In the version 1^st opposite party admitted that the complainant has entrusted the washing machine for rectifying the defects with them. The 1^st opposite party already rectified the defects of the said washing machine and it was duly informed to the complainant. But the complainant was not ready to pay the cost incurred by the 1^st opposite party to rectify the defects. Suppressing all the facts and to get the machine back without paying the amount complainant filed this complaint. They further stated that there is no deficiency in service from their side.

3. In the version 2^nd opposite party the Whirlpool India Ltd states that the complainant has not stated the year of purchase of the washing machine. The Washing machine is out of warranty, and the purchase of the washing machine is roughly 7 to 8 years back. The 2^nd opposite party further stated that the 1^st opposite party has collected the washing machine from the complainant's house and brought it to the Service centre by meeting the transportation cost, since the washing machine was out of warranty estimate of the work was given to the complainant. But the complainant was not ready to pay the service charges. Therefore the repairing could not be done by the 1^st opposite party who is only a service franchise of Whirlpool of India Ltd. If the complainant is prepared to pay the service charge the washing machine can be returned after repair or if he chooses not to pay the service charge then the machine can be returned without repair. They state that there is no deficiency of service on their part.

4. In this case the complainant has filed proof affidavit and he has produced 5 documents. The documents produced by the complainant were marked as Exts. P1 to P5. Opposite parties have no evidence.

Points that would arise for consideration are:

1. Whether there is deficiency in service from the side of opposite parties?

    

2. Whether the complainant is entitled to get the reliefs and costs?

5. Points (i) & (ii) : In this case there is no dispute regarding the matter that the disputed Washing machine is still within the custody of the 1^st opposite party. The 1^st opposite party did not rectify the defects till date. The complainant entrusted the washing machine to the 1^st opposite party on 29/11/2006. Ext. P2 is the evidence for the same. Ext. P2 is the copy of advocate's notice issued by the complainant to the 1^st opposite party on 2/07/2007. Through this notice the complainant demanded the opposite parties to return the washing machine with or without repair and servicing the same and in the event of failure on their part in rectifying the defect to pay Rs.20,000/- as compensation for loss of time and for the deficiency in service within three days of receipt of the notice. Ext. P3 is the postal receipt of issuance of notice. Ext. P4 is the returned acknowledgment card signed by the 1^st opposite party. The 1^st opposite party accepted the legal notice, but they did not turn up to sent a reply notice or returned the washing machine. In the version 1^st opposite party stated that they rectified the defects of the washing machine and it was duly informed to the complainant. But they have no evidence to prove that contention. Even if they have rectified the defects, they informed the matter to the complainant. In this case the 1^st opposite party even though they have accepted the notice from the complainant, never turned up to sent a reply to the complainant. From this we are of the opinion that they did not cared to rectify the defects. In this case the 2^nd opposite party raised a contention that the complainant was not ready to bear the transporting charge of the machine, that contention is false. The complainant has entrusted the Washing machine with the 1^st opposite party. 1^st opposite party has not raised any contention regarding the transporting cost. The complainant has not furnished any evidence regarding the price of the Washing machine and its purchasing date. From the above mentioned discussion and evidences we find that there is deficiency in service from the side of 1^st opposite party. Since the 1^st opposite party is the authorized service centre of the 2^nd opposite party, 2^nd opposite party has also some liability. But in the prayer column the complainant claims relief only against the 1^st opposite party and at the time of cross examination he answered that “1^st opposite party യില്‍ നിന്നും 30,000/- രൂപ compensation ഉം with or without repair washing machine 1^st opposite party യില്‍ നിന്നും തിരിച്ചു കിട്ടണമെന്നാണോ prayer in the complaint (Q) അതെ (A) Hence we do not fix any liability upon 2^nd opposite party. It is pertinent to point out that complainant has not mentioned the date of purchase of the said Washing Machine and its price while 2^nd opposite party in their version stated that the purchase of the Washing machine is roughly 7 to 8 years back, which is not denied by the complainant in his affidavit rather in his cross examination complainant admitted the said washing machine purchased in 2002 and its bill is with him, complainant never furnished any bill showing its price. The complainant has entrusted the washing machine for repair to the 1^st opposite party on 29/11/2006, sent legal notice on 02/07/2007 complaint filed before this Forum only on 19/5/08. The opposite parties have sufficient time to settle the matter, but they did not turn up to return the washing machine to the complainant. Due to the inordinate delay the complainant has suffered huge mental and physical agony and financial loss. The complainant had purchased the Washing machine for his domestic use. Due to the negligent and irresponsible attitude of the opposite parties, he could not use the washing machine for his domestic purpose. Hence the 1^st opposite party is liable to compensate their defective service to the complainant. Hence the complaint is allowed.

In the result, the 1^st opposite party is directed to pay Rs.10,000/- as compensation to the complainant. The 1^st opposite party shall return the washing machine to the complainant in working condition and the 1^st opposite party shall recover the repairing cost. The 1^st opposite party shall pay Rs.2,000/- as costs. If the 1^st opposite party cannot return the washing machine to the complainant in any other circumstances, the 1^st opposite party shall pay the price of the washing machine. Time for compliance one month from the date of receipt of the order failing which execution proceedings can be initiated.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of July, 2010.

BEENA KUMARI. A.,

MEMBER.

G.SIVAPRASAD, PRESIDENT.

S.K. SREELA MEMBER.

ad.

C.C.No.110/2008

APPENDIX

I. Complainant's witness:

PW1 : J. Harikumar

II. Complainant's documents:

P1 : Original repair and Claim Form

P2 : Copy of advocate notice dated 2/7/07

P3 : Postal receipt dated 2/07/07

P4 : Acknowledgment card addressed to 1^st opposite party

P5 : Field cash receipt dated 6/12/06

III. Opposite parties' witness: NIL

IV. Opposite parties' documents: NIL

PRESIDENT