DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.77/09.06.2008 Decided on : 25.02.2009 Dr.Harpreet Singh Sidhu S/o Dr. Chanan Singh Sidhu S/o Sh.Nahar Singh, resident of Courts Road, Near Bal Bhawan, Mansa. ..... Complainant. VERSUS 1.Whirlpool of India Limited, Plot No.40, Sector 44, Gurgaon 122002 through its Managing Director. 2.M/s Ganesh Electronics, Gaushala Road, Mansa through its Manager /Proprietor/Partner ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Sushil Kumar, Advocate, counsel for the complainant. Sh.Vishvpreet Garg, Advocate, counsel for Opposite Parties. Before: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President. This complaint has been filed, by Dr.Harpreet Sidhu son of Dr. Chanan Singh Sidhu, resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), against Whirlpool of India Limited, New Delhi through its General Manager (Sales)/Managing Director and M/s Ganesh Electronics, Mansa through its Manager /Proprietor/Partner for giving direction to the opposite parties for Contd........2 : 2 : replacement of the fridge purchased by him and payment of compensation, in the sum of Rs.50,000/-, and in the alternative, to refund the cost of the fridge, in the sum of Rs.23,500/-, and charges paid on account of repair thereof in the sum of Rs.1330/- along with costs in the sum of Rs.1500/- and interest. 2. Briefly stated, the case of the complainant is that he purchased a fridge of 'Whirlpool' make from OP No.2 at Mansa in the sum of Rs.23,500/- vide bill No.7242 dated 30.3.2005. The said fridge was manufactured by OP No.1, as such, complainant is 'consumer' under the opposite parties and is entitled to invoke the jurisdiction of this Forum. After purchase of the fridge, the complainant found manufacturing defect, because of which it was not functioning properly. The complainant approached OP No.2 and disclosed him about the defect, but he did not pay any heed to his request. However, after several requests, officials of the opposite parties visited the house of the complainant and gave assurance, to remove the defect in his fridge and convinced him, that defect would automatically be removed with the passage of time. On being called by the complainant, they visited his premises atleast once in a month, but they failed, to remove the defect before the complainant made a formal complaint No.CHO 308000493 to customer care Centre bearing No.18601804558 of the manufacturer. Thereafter, an engineer was deputed by OP No.1, who visited the house of the complainant and charged a sum of Rs.1330/- Although the fridge was repaired, within the warranty period. , but inspite of the visit of the said Engineer, the fridge purchased by the complainant, did not work, as per the norms, specifications and standards laid down by the manufacturing company. The complainant made complaints on 6.5.08, 26.5.08, 28.5.08, 2.6.08, 3.6.08 and 4.6.08, to the opposite parties in their office situated at Bathinda on their telephone No.0164-2253355, but no action, has been taken by them. The complainant has purchased the fridge on 30.3.2005 and warranty was Contd........3 : 3 : given for a period of 7 years. The OP No.2 and officials of OP No.1 detected the manufacturing defect in the fridge of the complainant, but they refused and instead of removal of the defect, they misbehaved with him, as such, there is deficiency in service on their part. 3. On being put to notice, the OP No.1 filed written version resisting the complaint, by taking preliminary objections; that complaint is barred by limitation and warranty period of 2 years from the date of sale has expired; that no complaint, has been filed by the complainant, within the comprehensive warranty period of one year i.e. on 29.3.2006 or within a period of 2 years from the date of sale; that complaint is misconceived and not maintainable; that this Forum, has no jurisdiction to entertain and try the complaint, because as per the terms and conditions contained in the card of warranty, it is binding on the part of the parties and the courts in New Delhi, has exclusive jurisdiction over the matters covered by supply of products manufactured by the answering opposite party; that there is no defect in the fridge purchased by the complainant and there is no deficiency in service on the part of the answering opposite party; that the complainant has misrepresented the facts before this Forum, which is abuse and misuse of process of law and his version is based on conjectures, surmises and concocted facts; that the complainant, after the repair of his fridge by the Engineers of the answering opposite party refused to acknowledge the factum of repair and failed to append his signatures, although the fridge started functioning properly and cooling the air and the complainant has filed the complaint with malafide intentions to escape payment of charges of repair in terms of Optional Service Contract and to extract money from the opposite parties; that the complainant has not approached the Forum with clean hands, as he has concealed the material facts from the knowledge of this Forum to the effect that drair, relay, OLP and drain pan mentioned in his request for service dated 19.7.2008 were not covered under the Optional service Contract and Contd........4 : 4 : payment of these articles was to be borne by the complainant, as such, it is liable to be dismissed. On merits it is denied that complainant is consumer under the answering opposite party within the purview of its definition given in the Act,. It is denied that fridge purchased by the complainant, had any manufacturing defect and the complainant, has not brought any such defect to the notice of the answering opposite party. It is further denied that complainant is entitled to replacement of the fridge or payment of its value, compensation and costs, as prayed for. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 4. The OP No.2 filed separate written version resisting the complaint, by taking preliminary objections; that complainant is practicing in hospital and is running his hospital in the name and style of 'Sidhu Homeopathic Hospital' and have employed several employees and he has purchased the fridge for use for commercial purposes, as such, this Forum has no jurisdiction to entertain and try the complaint; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, complaint, is not maintainable; that there is no deficiency in service on its part, as such, the complaint is liable to be dismissed; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainant, has concealed material facts, from the knowledge of this Forum, as such, he is not entitled to the relief prayed for; that sale counter of the answering opposite party is situated at Mansa and manufacturer is responsible for the manufacturing defect, if any, and not the answering opposite party. On merits, it is admitted that fridge purchased by the complainant was manufactured by the Whirlpool Company vide bill dated 30.3.2005. It is reiterated that it is being used by the complainant for commercial use in his hospital. It is denied that the complainant approached the answering opposite party for repair of the fridge. It is contended that answering opposite party, has not employed any technical Contd........5 : 5 : person, as such, question of their visit to the premises of the complainant does not arise. However, it is admitted that manufacturer had given guarantee for proper functioning of the fridge purchased by the complainant for a period of 7 years. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 5. On being called upon by this Forum to do so, both the parties adduced oral and documentary evidence through their respective counsel. 6. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by them , carefully, with their kind assistance. 7. Sh.Vishvpreet Garg, Advocate, learned counsel for the opposite parties, has submitted, at the outset, that complainant, has purchased fridge on 30.3.2005, but he has filed the instant complaint on 9.6..2008, as such, it is barred by limitation. 8. On the other hand, learned counsel for the complainant Sh.Sushil Kumar Singla, Advocate, has argued that the complainant had made complaints on 6.5.08, 26.5.08, 28.5.08, 2.6.08, 3.6.08 and 4.6.08, in the office of the opposite parties situated at Bathinda on their telephone No.0164-2253355. It is argued that cause of action has accrued to the complainant to file the complaint after 4.6.2008 when the opposite parties failed to put his fridge in order, as such, complaint filed by the complainant on 9.6.2008 is within limitation. 9. We find merit in the argument advanced by the learned counsel for the complainant, because as per the provisions of Section 24A of the Act, introduced by the Legislature through Amendment Act, 2002, complaint before the Consumer Forum may be filed, within a period of 2 years from the date of cause of action has arisen. As per the admitted facts,by OP No.2, warranty for a period of 7 years, for proper functioning of the fridge, was given, by the manufacturing company i.e. OP No.1, to Contd........6 : 6 : the complainant on all its part. The admission has been made by none else than the person who has been appointed dealer by the manufacturer. As such, we do not find substance in the plea of the manufacturing company that warranty was given only for a period of one year on all the parts of the fridge including its compressor. The complainant, has made several complaints regarding the manufacturing defect in the fridge during the warranty period, but the manufacturing defect in the fridge purchased by him, has not been removed, so far. The cause of action to file the complaint, has accrued on 4.6.2008 for the last time, but opposite parties took no further action. As such, complaint is well within the period of limitation, as provided in Section 24A of the Act. 10. At this stage, learned counsel for the opposite parties, has submitted, that the fridge of the complainant was repaired by the manufacturer on 9.7.2008 during the pendency of the complaint, as such, there is no deficiency in service on their part, for which compensation or costs may be awarded to the complainant. 11. On the other hand, learned counsel for the complainant, has submitted that the fridge purchased by the complainant has been repaired and defect has been removed by the manufacturer only on 9.7.2008 after filing of the complaint on 9.6.2008, as such, he cannot escape liability for the physical and mental harassment suffered by him and have to pay amount spent by him in filing of the instant complaint. 12. Admittedly, the Fridge has been repaired and defect therein has been removed by the manufacturer on 19.7.2008, as evident from the Service Request Ext.OP-1, placed on record by the opposite party No.1 itself. No doubt, the manufacturer has repaired the fridge purchased by the complainant on 19.7.2008, i.e. within the period of warranty, but it does not absolve him of the liability to make payment of amount demanded by the complainant on account of compensation for physical and mental harassment and for amount incurred by him for filing the instant complaint. Contd........7 : 7 : As such, there is deficiency in service on the part of the opposite parties. Since deficiency in service on the part of the OP No.1 is established, therefore, complainant deserves payment of adequate amount on account of compensation for physical and mental harassment and on account of costs for the amount spent by him in filing of the instant complaint. However, the OP No.2 has merely acted as a dealer of the manufacturer, as such, liability for manufacturing defect cannot be fastened upon him. 13. For the aforesaid reasons, complaint against the OP No.2 is dismissed whereas it is accepted against the OP No.1 , with a direction to pay the sum of Rs.2,000/-, on account of compensation and Rs.1,000/-, on account of costs to the complainant. The said amount be paid to the complainant within the period of two months from the date of receipt of the copy of this order. 14. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 25.02.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
