D.o.F: 05/05/2005 D.o.O:15 /6 /2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.75/05 Dated this, the 15th day of June 2009. PRESENT; SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Abdul Razak, S/o Aboobacker, M/s R.M.Sweets,Udyawar Mada, Po.Kunjathur,Manjeshwar,Kasaragod. : Complainant 1. Manager, Voltas Ltd, 39/3608,Shema Building,M.G.Road, Ernakulam.,Kochi-682016. :Opposite parties 2. Managing Director, Zain Distributors, Opp.Kerala Water Authority, Po.Vidyanagar,Kasaragod. ORDER SRI.K.T.SIDHIQ :PRESIDENT: In short the case of Abdul Razak is that he purchased one Voltas Refrigerator manufactured by Ist opposite party through 2nd opposite party. Opposite party No. 2 was the authorized dealer of Ist opposite party, it was installed in his establishment a M/s R.M Sweets. He paid Rs.26290/- towards the price of the refrigerator through D.D and it was delivered through Opposite party No.2. The refrigerator became defective during its warranty period due to its less cooling effect, Though the service technician took it to their service center on 7/4/04 and returned it on 8/4/04 after repair the problem persisted. Ist opposite party thereafter not responded to the grievance of the complainant. Now the refrigerator is kept idle. Hence the complaint claiming the replacement of the refrigerator or refund of its price with compensation of Rs.15000/- and cost of Rs.2000/-. 2. Ist opposite party contended that the refrigerator sold to the complainant was used in his establishment for commercial purpose and hence he is not entitled to approach the Forum. There is no privity of contract between the complainant and the opposite parties. The chest freezer was supplied to the complainant through a special scheme in contract with M/s Gujarat Co-operative Milk marketing Federation , the manufacturer of Amul brand products for storage of frozen Amul products namely ice cream. The value of the freezer is fixed at a special price under the scheme, which is less than the market price. The freezers under the said scheme are mainly intended for storage of ice creams and other frozen products of Amul alone. But the complainant had stuffed the freezer with juice , milk packets, fruits, cool drink bottles etc. However the defect pointed out by the complainant was repaired under warranty terms on 13/4/04 though he was not entitled for the warranty benefits. The order for fridge was placed through 2nd opposite party is not correct and the equipment was supplied by Ist opposite party at the premises of the complainant.. 3. Opposite party No.2 filed their version totally denying the allegations of the complainant. According to him, all the allegations of the complainant has arisen from complainant’s fertile imaginations. They were the authorized dealer of Amul ice cream to the shop run by the complainant. There was some misunderstanding between 2nd opposite party and complainant and the complainant is reckoning the personal vengeance by way of a false complaint 4. Complainant filed affidavit and Exts.A1 to A10 marked. He was cross examined by the counsels of opposite parties. 2nd opposite party adduced evidence as DW1 and he was subjected to cross examination by the counsel for complainant. 5. The contentions of the opposite parties are not acceptable. According to Ist opposite party, the complainant was using the refrigerator in his establishment M/s R.M.Sweets for commercial purpose. Hence he is not a consumer. This contention is not sustainable since the business of the complainant is not the sale of refrigerator but it is a bakery. The complainant may be using the fridge for keeping the products intended for sale in frozen condition. But it has no direct nexus with his bakery business. The Hon’ble National Commission drawn a distinction between commercial purpose and commercial activity in the decision Harsolia Motors vs. National Insurance Co.Ltd. in I (2005) CPJ 27 (NC) and held that where the goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be a commercial purpose. Even otherwise the complaint is maintainable. The complaint is with respect to the defects of the refrigerator carrying a warranty not satisfactorily rectified by the manufacturer during the warranty period. Therefore the buyer would be treated as a consumer even if the use is for commercial purpose in view of the Hon’ble National Consumer Disputes Redressal Commission in the judgment reported in 2008 CTJ 574 (CP)(NCDRC) in the case of Viewtects Imaging Equipment Pvt.Ltd. & another vs. CMC Ltd and another. 6. The 2nd contention raised by the Ist opposite party is that the refrigerator (chest freezer) sold to the complainant was intended only for storage of frozen Amul products namely ice cream. But the complainant had stuffed the freezer with juice, milk products, fruits cool drink bottles etc, and that it is not expected to store such products in the freezer. This contention is also not hold good in view Ext.A4 user manual of the chest freezer. In Ext.A4 the storing tips and the brief guide for freezing shows that a variety of food commodities can be kept for freezing other than ice cream products. 7. According to 2nd opposite party he is unrelated to the purchase of freezer by complainant from opposite party No.1. With respect to Ext.A2 receipt, 2nd opposite party deposed that the signature contained in Ext.A2 not belongs to him or his salesman . At present the name of his establishment is changed as ANZ Traders. However, considering the version of Ist opposite party that it is OP.NO.1 who directly delivered the refrigerator to the complainant, it is not necessary implicate 2nd opposite party with any liability. 8. Ist opposite party admits that the refrigerator has got defects and once they repaired it. But since the defect recurred and the Ist opposite party’s sales man failed to repair it, now the complainant is keeping the refrigerator idle and he purchased a new one for using in his shop as evidenced from Ext.A10, the purchase bill of M/s Blue star chest freezer. 9. The complainant has not got the benefits of the chest freezer he purchased from Ist opposite party. It became defective within a shorter period of purchase . When a brand new product like chest freezer that is expected to provide years long trouble free service became defective and useless within a short period say with 2 months from the date of purchase definitely a consumer will be put to severe mental agony and sufferings. We can imagine the pinch of the consumer in such circumstances when he purchased it with his hard earned money. Ist opposite party being the manufacturer of the chest freezer is therefore liable to compensate the complainant adequately. In the decision reported in Ghaizabad Development Authority vs. Balbir Singh 2004 CTJ 605(Supreme Court(CP), the Hon’ble Apex court has held that the compensation may extend to physical mental or even emotional sufferings, insult or injury or loss. In the result, the complaint is allowed and the Ist opposite party is directed to refund Rs.26290/- to the complainant and take back the refrigerator/chest freezer from the shop of the complainant in as is where is condition. Opposite party is also directed to pay interest @ 12% for Rs.26,290/- from the date of complaint ie.on 5/5/2005 till payment by way of compensation for the mental agony and sufferings caused to the complainant along with a cost of Rs. 3000/- . 2nd opposite party is exonerated from the liabilities. Time for compliance is 30 days from the date of receipt of copy of order. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1-19/2/04- Copy of D.D A2- ‘’ -receipt issued by OP.2 A3- cash bill A4-warranty card cum user manual A5- Copy of lawyer notice A6-3/9/04-reply of lawyer notice by OP.1 A7-15/9/4- ‘’ ‘’ OP.2 A8-to A10- cash bills PW1- Abdul Razak-complainant DW1- Anwar Shamnad- OP.NO.2 Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva/ /Forwarded by Order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
