SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019  for an order directing  the OPs to replace the refrigerator with a new one or to refund the value of the refrigerator for Rs.19,000/-,and non usage of the fridge the complainant lost Rs.92,000/-  till 10/3/2022 and Rs.750/- each per  day thereafter  to the complainant towards  loss of his income along with Rs.1,00,000/-  as compensation  for  mental agony, and pain and cost  of litigation to the complainant for the deficiency of service and  unfair trade practice on their part.

The brief  of the complaint:-                                                                                                                      

     The complainant is running a stationary cum cool drinks shop by name  J.J.Traders in Payyanur.  The income derived from the  shop  is the  only means of livelihood of himself and  his family .  The complainant had purchased a Samsung refrigerator from 1^st OP on 28/4/2021 for an amount of Rs.19,000/-.  He paid some amount by cash and for the remaining availed finance from Bajaj Finance Limited in EMI scheme.  On 20/10/201 the refrigerator become defective and the freezer not working properly .  Immediately the complainant informed the matter to 1^st OP.  The complainant requested the  1^st OP to take back the refrigerator and  replace a new one because the refrigerator is having warranty of one year and the defect  occurred in the  warranty period.  But the OPs were not repair the refrigerator.  But the repeated demands of  complainant the 1^st OP took back the defective refrigerator on 16/11/2021.  But after this time the refrigerator  is not repaired or to replace a new one.  But the OPs are not ready to replace a new refrigerator or repaired the same.  The complainant states that he purchased the refrigerator for making income for his livelihood.  The refrigerator stopped working on 20/10/2021 and 1^st OP took back the refrigerator on 16/11/2021.  Now the fridge is in the custody of 1^st OP.  The non usage of fridge the complainant has been sustaining a loss of Rs.750/- per day.  So the complainant  has sustained a loss of Rs.92,000/- till 10/3/2021.  Then the complainant send a lawyer notice dtd.20/11/2021 to 1^st OP. 1^st OP received the notice and send a  reply containing  false contentions and allegations.  The  act of  OP’s  the complainant caused much mental agony and financial loss.  So there is deficiency of service and unfair trade practice on the part of OP’s.   Hence the complaint.

       After  filing complaint  notice issued to both OP’s .  1^st OP received the notice and not appeared and no version filed before the commission.  2^nd OP entered before the commission and  filed his written version. So 1^st OP is set exparte.  2^nd OP contended that the product is having any manufacturing defect  a proper  analysis test report to confirm the same.  The complainant has failed to prove the alleged fault.  Moreover the product does carry warranty only which means the product shall be  repaired free of cost up to  a limited period  from the date of purchase  if any trouble crops up.  The complainant did not contact the manufacturer only contact the dealer.  The 2^nd OP has not caused any financial loss or mental agony to the complainant. So 2^nd OP has not liable to take any burden  in connection with the defects of the refrigerator sold by the dealer and  the 2^nd OP’s liability may be dismissed.

      On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PW1 and  Exts. A1 to 7 were marked . On OP’s side no witness examined and no documents  marked.

Issue No.1: 

                The  Complainant  adduced evidence before the commission by submitting  his chief affidavit in lieu of  his chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  He was cross examined as PW1 by 2^nd  OP.  PW1 relied up on Exts.A1 to A7 documents to substantiate his case. According to him on 28/4/2021the complainant purchased a Samsung refrigerator and paid Rs.19,000/- to 1^st OP and shows in Ext.A1 document.  In Ext.A2 is the delivery receipt dtd.16/11/2021 issued by 1^st OP regarding the custody of the refrigerator.  In Ext.A3 is the lawyer notice issued by complainant to 1^st OP.  Exts.A4&5 are postal receipt and acknowledgment card. In Ext.A6 is the reply notice issued by 1^st OP to complainant.  In Ext.A7 is the warranty card with user manual issued by 2^nd OP to complainant.  According to the complainant on 20/10/2021 the refrigerator became defective and the  freezer is not working properly.  Then the complainant informed the matter to 1^st OP.  But the OP’s are not cured the defect.  Moreover the complainant demanded a new refrigerator instead of curing the defect of old one.  But the OP’s are not ready to replace new one. The  act of  OP’s  the complainant caused much mental agony and financial loss. In the evidence PW1 deposed before the commission  that “2- ാം എതൃകക്ഷി നിങ്ങൾക്ക് നഷ്ടപരിഹാരം തരാൻ ബാധ്യത ഇല്ലെന്ന് പറയുന്നു? ശരിയല്ല. Warranty തന്നത് 2- ാം എതൃകക്ഷിയാണ്. There is  deficiency of service and unfair trade practice on the part of OP’s.  Moreover the refrigerator is within the custody of 1^st OP and shown in  Ext.A2 also. Hence the issue No.1 found in favour of the complainant and  answered accordingly.

Issue Nos.2&3:

        As discussed above the OP’s are  not ready to replace  a new refrigerator to the complainant.  Moreover , 2^nd OP filed argument note and sited some decisions of Hon’ble Supreme Court of India in Stereocraft vs. Monotype India Ltd New Delhi(2000,NC J(SC)59.  Hon’ble  National Commission in Tata Motors vs. Rajesh Tyagi and  HIM Motors  Showroom II.1.(2014)CPJ 132(NC).  The complainant produced Ext.A1 document which clearly shows that the complainant has paid Rs.19,000/- to 1^st OP.  According to the complainant failure to provide the new refrigerator,  the opposite parties are directly bound to redressal  the grievance caused to the complainant. Therefore, we hold that the OP’s are jointly and severally liable to replace a new refrigerator or to pay the value of refrigerator for Rs.19,000/- to the complainant along with Rs.7000/-  as compensation for mental agony of the complainant and Rs.3000/- as litigation cost. Thus the issue No.2&3 are also accordingly answered. 

          In the result the complaint is allowed in part  directing the  opposite parties 1&2 are jointly and severally liable to replace a new refrigerator or to pay the value of refrigerator for Rs.19,000/- to the complainant along with Rs.7000/-  as compensation for mental agony of the complainant and Rs.3000/- as litigation cost  within  30 days of  receipt  of this order. In default the amount of Rs. 19,000/- carries 12% interest per annum from the date of order till realization.  Failing which the  complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.

Exts:

A1- Invoice dtd.28/4/21

A2-Delivery receipt dtd.16/11/21

A3-lawyer notice

A4-postal receipt

A5-Acknowledgment card

A6- Reply notice

A7- Warranty with user manual

PW1-Jenson Baby- Complainant

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                      MEMBER                                         MEMBER

Ravi Susha                                  Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR