DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./122/2018
Date of Filing Date of Admission Date of Disposal
20.03.2018 03.04.2018 22.04.2024
Complainant/s:- | RATNA BHATTACHARYA, 28/B, Rani Branch Road, Police Station – Chitpore, Kolkata – 700002. -Vs- |
Opposite Party/s:- | 1. WHIRLPOOL CORPORATION, WHIRLPOOL OF INDIA LIMITED, ARCH WATER FRONT, 8th Floor, Unit – 8B, Plot No. F4, GP Block, Sector – V, Salt Lake, Kolkata – 700091, Police Station – Bidhannagar (South). 2. THE REGIONAL MANAGER, WHIRLPOOL CORPORATION, WHIRLPOOL OF INDIA LIMITED, ARCH WATER FRONT, 8th Floor, Unit – 8B, Plot No. F4, GP Block, Sector – V, Salt Lake, Kolkata – 700091, Police Station – Bidhannagar (South). 3. GREAT EASTERN APPLIANCES PRIVATE LIMITED, 20, Old Court House Street, Police Station- Hare Street, Kolkata – 700001. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainant above named filed this complaint against the aforesaid Opposite Parties U/s 12 (i) (a) of the Consumer Protection Act, 1986 praying for direction to the Opposite Parties to refund a sum of Rs. 21,500/- being the value of Whirlpool washing machine, compensation amounting to Rs. 50,000/-, further compensation amount to Rs. 50,000/-, litigation cost amounting to Rs. 25,000/-, Rs. 10,000/- as unfair trade practice and other reliefs.
He alleged that he had purchased one washing machine from the O.P No. 3 and paid Rs. 21,500/-. At the time of purchase of the said washing machine 2 years warranty was given to him by the said company. On 21/04/2017 he lodged a complaint before the company vide complaint no. 04/19273. One mechanic namely Biswajit Bag attended the complaint and he reported that due to accumulation of sediment, aforesaid machine stopped its function for which complainant paid Rs. 540/- for cleaning materials and Rs. 515 as service charge.
Again in October 2017 Complainant also lodged one further complaint as the said machine was totally out of order. Again said mechanic namely Biswajit Bag attended the said complaint and he after examination of the machine reported that one parts which regulate the electrical function of the machine need to replace the same and value of the said part is 5500-6000/- and 7/8 days time is required.
Complainant gave consent.
On 31/10/2017 one Debabrata Nath of Whirlpool service centre told the complainant that said washing machine is now obsolete as such no parts will be available. Hence, the said machine is not repairable.
Representative of O.P No. 1 and 2 over phone offered the depreciation value to the Complainant amounting to Rs. 4375/- after taking back the aforesaid machine and complainant asked them to send a written proposal then they rejected the service of aforesaid machine.
On November 14, 2017, Complainant contacted with the service people of the Opposite Parties over phone and requested them to send an official proposal in writing regarding the aforesaid offer. Service people rejected the same stating that no such proposal will be given in writing.
On November 29, 2017, Complainant received an evasive letter from the Opposite Parties No. 1 and 2 wherein they contended an alleged policy for replacement of the said machine which is not mentioned in any other document so supplied to him at the time of purchase. Said letter is unwarranted and bad in law.
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C.C. No./122/2018
Hence, the Complainant filed this case.
On perusal of record we find that O.P No. 3 filed W/V. He denied the entire allegations made in the petition of complaint and further contended that present case is not maintainable. He prayed for dismissal of the case.
Decisions with Reasons:-
We have carefully gone through the record. We have also carefully gone through the petition of complaint filed by the Complainant. We have also carefully gone through the W/V filed by O.P No. 3. We have carefully gone through the documents filed by the Complainant at the time of filing of this complaint.
During Trial Complainant filed affidavit-in-chief, O.P No. 3 filed questionnaire and Complainant gave answer.
Complainant filed supplementary affidavit on 10/11/2022.
Complainant filed BNA and O.P No. 3 also filed BNA in this case.
On perusal of record we find that O.P No. 1 and 2 not yet appeared in this case nor filed W/V.
It is admitted position that Complainant had purchased one washing machine i.e. “Whirlpool Explore 855 LEW 5.5 KG WM” from the O.P No. 3 after paying case of Rs. 21,500/-. He purchased the said machine on 05/05/2012. Said machine was not working properly and he firstly lodged on complaint on 21/04/2017. Thereafter he also made repeated complaints on several occasions and representative of O.P No. 1 and 2 attended the said call. They gave their service on several occasions during the aforesaid period of
complaint. Lastly, it was found by the service people of O.P No. 1 and 2 that one parts of the said machine should be replaced and said parts is not available in the market even representative of O.P No. 1 and 2 not yet able to provide the said parts.
Lastly, the representative of O.P No. 1 and 2 verbally gave an offer to the Complainant that they would take back the machine after giving the value of the same deducting the value of depreciation. But O.P No. 1 and 2 did not get the said offer in writing.
It is fact that said washing machine worked properly for almost five years and after that Complainant found that said machine is not working properly.
We have carefully gone through the decision of Hon’ble N.C.D.R.C cited by O.P No. 3 and reported in 2016 (3) CPR 35 (NC). We find that Hon’ble N.C.D.R.C held that manufacturing defect is to be taken care of by manufacturer only.
He cited another decision cited by O.P No. 3 and reported in III (2016) CPJ 239, we find that Hon’ble N.C.D.R.C held that “sofar as liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which respondent cannot be made to suffer.”
He cited another decision cited by O.P No. 3 and reported in I (2016) CPJ 675 (NC), we find that Hon’ble N.C.D.R.C held that refund of cost of refrigerator and compensation ordered by District Forum was justified.
Ld. Advocate for the Complainant cited a decision reported in I (2003) CPJ 69 (NC), we find that Hon’ble N.C.D.R.C held that dealer and manufacturer company jointly and severally liable. But said decision has passed relating to Consumer Protection Act, 1986 but after coming into force the new Act, i.e. C.P. Act, 2019, Section 82-87 has been introduced relating to product liability.
Accordingly we find that said decision is not applicable in the present case.
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C.C. No./122/2018
We have carefully gone through the documents filed by the Complainants. On perusal of record we find that aforesaid washing machine not yet been examined by any expert. Without consideration of the report of expert it is not possible for this Commission to say that aforesaid washing machine suffers with manufacturing defect.
In the present case one of the vital parts of the aforesaid washing machine was not available and for that reason aforesaid washing machine was unable to work properly.
Considering the facts and circumstances of this case and materials on record, we found that non supply of vital parts of the aforesaid washing machine is amounts to deficiency in service and in that situation O.P No. 1 and 2 being the manufacturer of aforesaid washing machine are bound to refund the value of the aforesaid washing machine after deducting the depreciation value.
As O.P No. 3 is a product seller so he has no liability in view of provision of Section 86 of Consumer Protection Act, 2019.
On perusal of record we find that Complainant is the consumer and O.Ps are the service provider.
Having regard to the aforesaid discussion we are of the firm view that order to refund of value of the aforesaid washing machine deducting the depreciation value should be passed against the O.P No. 1 and 2 for the interest of justice.
In the result, present case succeeds in part.
Hence,
It is
Ordered:-
That the present case be and the same vide no. CC/122/2018 is allowed in part on contest against the O.P No. 3 and allowed ex-parte against O.P No. 1 and 2 with cost of Rs. 5,000/- (five thousand) to be paid by O.P No. 1 and 2 in favour of the Complainant.
O.P No. 1 and 2 jointly or severally are directed to refund the value of aforesaid washing machine after deducting the depreciation value in favour of the Complainant positively within 45 days from this day failing which the Complainant shall have liberty to put this order into execution.
O.P 1 and 2 jointly or severally are directed to pay the compensation amounting to Rs. 10,000/- (ten thousand) in favour of the Complainant positively within 45 days from this date failing which the Complainant shall have liberty to put this order into execution.
Let a copy of this order be supplied to both the parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
