COMPLAINT FILED ON: 03.03.2010

DISPOSED ON: 24.02.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

24^TH FEBRARY 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties (herein after called as O.P) to replace Dish washer purchased on 25.02.2008 from the OP or to refund the value Rs.24,800/- along with compensation of Rs.10,000/- and cost on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

On 25.02.2008 complainant purchased a dish washer from the OP-1 who is a dealer in the brand name as IFB Dish Washer NC Neptune and paid Rs.24,800/- cash to OP.  OP has given warranty of two years from the 25.02.2008 to 24.02.2010 having a Sl. No.07-103876-08. Since the date of installation the said dish washer was not working properly. On 05.03.2008 the said dish washer stopped functioning. In this regard complainant made complaint to OP-1. One of the technicians from the OP-1 came and made efforts to repair the same.  Unfortunately the efforts ended in vain and he expressed that there is a manufacturing defect in the same and advised the complainant to seek for replacement of the same. Hence complainant approached OP-1 and made repeated requests and demand for replacement but there is no response from OP-1. On 04.02.2010 complainant caused legal notice to OP-1 requesting OP to replace the said dish washer with a new dish washer within 7 days from the date of notice. In spite of service of notice OP-1 neither replaced dish washer nor send any reply to the said notice.  Hence complainant felt deficiency in service against the OPs. Under these circumstances he is advised to file this complaint for the necessary reliefs.

3.      The officer on behalf of OP-1 appeared. In spite of giving sufficient opportunity OP-1 failed to file the version. Complainant got impleaded OP-2, which is a manufacturing company. On appearance OP-2 filed its version contending that complaint is barred by limitation. Complainant has suppressed material facts and not approached this court with clean hands and as such not entitled for any reliefs.  OP-2 admits purchase of dish washer by the complainant from OP-1. OP-2 denies that dish washer not functioning properly from the date of installation and stopped functioning from 05.03.2008. OP-2 also denied that there is a manufacturing defect in the dish washer. Complainant made vague and bald statement without substantiating the same. OP-2 has denied the issuance of legal notice and submits that there is no defect in the dish washer. However OP-2 is ready and willing to rectify the problem and hand over the same to the complainant; as such complainant cannot seek for refund of money paid towards the dish washer or for the replacement of the dish washer. There is no cause of action to file a complaint against OP2, since complainant has not approached OP-2 earlier and without giving any particulars to inspect the dish washer.  Complainant cannot make allegation of deficiency in service. Among other grounds OP-2 prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments complainant filed his affidavit evidence and produced copy of the invoice dated 25.02.2008 issued by OP-1 and copy of the legal notice dated 04.02.2010, postal acknowledgement and receipts.  On behalf of OP-2 Sri.Venktesh, Service Executive of OP-2 filed his affidavit evidence. OP-2 has not produced any documents.  Complainant and OP-2 submitted their written arguments.  Heard oral arguments from complainant’s side and taken as heard from OP-2.

5.      In view of the above said facts the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that complainant purchased dish washer from the OP-1 under the brand name “IFB Dish Washer NC Neptune” under the invoice dated 25.02.2008 having SRS SS No.144315, Code No. F 129 by paying a sum of Rs.24,800/- by way of cash to OP. The copy of the invoice is produced. OP has given warranty of two years from 25.02.2008 to 24.02.2010 having Sl.No.07-103876-08. The grievance of complainant is since from the date of installation, the said dish washer was not working properly. On 05.03.2008 it stopped functioning totally. When the very purpose of purchasing of the same is failed.  Complainant raised the complaint in this regard with OP-1 dealer. One of the technicians from the OP-1 approached the complainant and made efforts to repair the same. Unfortunately the efforts ended in vain and he was unable to repair the same; Further the said technician expressed that there is manufacturing defect in the same and advised the complainant to seek for replacement of the said dish washer.  Hence complainant approached OP-1 and made repeated requests for replacement. When there was no response from OP-1. Complainant caused legal notice to OP-1 on 04.02.2008 calling upon OP-1 to replace the said dish washer within 7 days from the date of notice.  In spite of service of notice there is no reply from OP-1. We have perused the copy of the notice postal acknowledgements and receipts produced by the complainant. In spite of service of notice OP-1 neither replace dish washer to the complainant nor send any reply to the complainant. Hence the complainant approached this forum.

8.      As against the case of the complainant; the defence of the OP-2 that complaint is barred by law of limitation has no basis. Complainant purchased the dish washer on 25.02.2008. Complainant has sworn to the facts that since from the day of purchase the said dish washer was not functioning properly and on 05.03.2008 that is within a week of its purchase, the said dish washer totally stopped functioning. The technician sent by OP-1 has opined that the said dish washer is having manufacturing defect and suggested to go for replacement. If the dish washer was repairable, there was no need to make such suggestion to the technician of OP-1. OP-2 has not denied this fact. Hence there is no need to obtain expert evidence. On repeated request when OP-1 failed to repair or replace the same. On 04.02.2010 complainant caused legal notice. Calling upon OP-1 to replace the said dish washer within 7 days from the date of receipt of the notice. Hence complaint is well within the limitation. Though OP1 officer is present before the forum on 17.04.2010 till date he has not chosen to file his version or affidavit inspite of giving sufficient opportunity. OP-2 admits the purchase of dish washer by the complainant from OP-1 but denies that dish washer was not functioning properly from the date of installation. In support of its defence OP-2 has not filed any report or affidavit of its technicians stating that the dish washer is functioning properly. Hence contentions of the OP-2 that dish washer is functioning properly cannot be accepted. The dish washer sold by OP-1 to the complainant and manufactured by OP-2 is having manufactured defect. Further OP-2 is contention that he is ready and willing to rectify the problem in the dish washer cannot be accepted.  Inspite of service of legal notice OP-1 failed to give any reply to the notice or replace the dish washer. Within the period of warranty of two years complainant is entitled for replacement when the product is having manufacturing defect. OP-1 having accepted huge amount of Rs.24,800/- has failed to supply defect free dish washer or to replace the same and failed to give any reply to the legal notice.  This act of OP amount to deficiency in service on their part. From the evidence available on records we are satisfied that. The complainant is able to prove deficiency in service on the part of OP-1 and 2. Under these circumstances we are of the considered view that complainant is entitled for relief of replacement of dish washer with litigation cost of Rs.1,000/-. Accordingly we proceed to pass the following:

ORDER

          The complaint is allowed in part.  OP-1 & 2 are directed to take back the defective dish washer from the complainant and replace the same brand defect free new dish washer and pay litigation cost of Rs.1,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 24^th day of February 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.