DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

           Dated this the day of 24^th day of September 2024

                                                                                      Filed on: 28.12.2021

PRESENT:

Shri. D.B. Binu,                                            President

Shri. V. Ramachandran,                                Member

Smt. Sreevidhia T.N.,                                   Member

C.C.No.521/2021

Complainant:

Dr. M G Presanna, W/o K. G Sarath Kumar, Gauri, P D road, Palluruthy, Cochin-682 006.

(By Adv.Vishakh K.A., City Law Chamber, Cochin Corporation Office cum Shopping Complex, Broadway, Cochin-31)

Vs.

Opposite parties:

1.       M/S WHIRLPOOL OF INDIA LTD, Whirlpool house, Plot no: 40, sector 44, Gurugram-122 002, Haryana, India.

2.       Fridge House Retail (P) LTD, 37/246, B-5, K.K Road, Near Vinayaka Auditorium, Kadavanthra, Ernakulam-682 020, Cochin.

(Op1 rep. by Adv.K.S.Arundas #35, DD Oceana Mall, Near Taj Gate Way  Hotel, Marine Drive, Ernakulam-682 031

F I N A L    O R D E R

D.B. Binu, President

1. A brief statement of facts of this complaint is as stated below:

This complaint is filed under Section 35 of the Consumer Protection Act, 2019. The complainant purchased a Whirlpool side-by-side fridge (Model: 20943 WPL, WS SBS 603 CRYS GOLD) from the 2^nd opposite party showroom on 8^th  May 2019. On 24^th  September 2021, the LED lamps in both the freezer and fridge compartments stopped functioning. The complainant immediately reported the issue to the service centre and received a service request number (COC 24092194680). A technician inspected the fridge but could not identify the exact cause of the malfunction. The complainant paid a service charge of Rs.350/-. The technician later identified faulty door switches but could not replace them due to the unavailability of spare parts.

The complainant was informed that the fridge could be replaced at a depreciated value, requiring an additional payment of Rs.20,000/-. The complainant agreed to pay this amount on the condition that a different model is to be provided, but this request was rejected by the opposite parties. Despite multiple complaints and emails, no satisfactory solution was provided.

On 23^rd October 2021, the complainant was informed that a spare switch was available, but only one switch could be replaced, leaving the issue unresolved. The opposite parties failed to replace or properly repair the fridge, causing the complainant mental distress and financial loss.

A lawyer's notice was sent to both opposite parties, but no response was received. The complainant seeks compensation of Rs.2,00,000/- for the mental stress, hardship, and loss suffered due to the negligence and inaction of the opposite parties. The complaint is filed within the stipulated time frame, and the complainant prays for the replacement of the fridge or compensation for the damages suffered.

2. NOTICE:

The Commission issued notice to both opposite parties. However, the second opposite party failed to file their version within the statutory period and was consequently set ex-parte. The first opposite party complied with the notice and filed their written version in response to the complaint.

3. THE VERSION OF THE FIRST OPPOSITE PARTY.

The complaint is misdirected and should be dismissed due to the complainant's failure to include the service centre as a necessary party.

The opposite party acknowledges that the complainant purchased a refrigerator on 8^th May 2019, which was installed to the complainant's satisfaction. The refrigerator was under warranty for 12 months. However, on 24^th September 2021, 28 months after purchase, the complainant reported a defective door switch. A technician inspected the refrigerator and found that the defect was due to physical damage, not a manufacturing defect. The technician provided an estimate for the repair, which the complainant refused to pay, falsely claiming the technician could not identify the issue.

As a gesture of goodwill, the opposite party offered to replace the refrigerator at a depreciated value due to delays in spare part delivery caused by Covid-19 restrictions. The complainant refused the offer, demanding a higher-priced model. The opposite party also offered to repair the defective parts free of charge, but the complainant declined this as well.

The opposite party denies allegations of manufacturing defects and asserts that the complainant has not provided any expert evidence to support this claim. They also stated that the complainant has wilfully suppressed the warranty terms and conditions to gain an unjustified advantage. The opposite party concludes that the complaint is frivolous and malicious, aimed at extorting illegal gains, and requests that the case be dismissed with costs in their favour.

4. Evidence:

The complainant submitted a proof affidavit along with five documents. The documents in the complaint are marked as Exhibits A1 and A5.

• Exhibit A1: True copy of the bill of purchase of the refrigerator from the 2^nd  opposite party.
• Exhibit A2: True copy of the lawyer notice sent to both the opposite parties.
• Exhibit A3: True copy of the postal receipt for the notice sent to the 1^st  opposite party.
• Exhibit A4: True copy of the postal receipt for the notice sent to the 2^nd  opposite party.
• Exhibit A5: True copy of the proof of delivery of the notice to the 2^nd  opposite party.

5. Points for Consideration:

I) Whether the complaint is maintainable or not?

II) Whether there is any deficiency in service or unfair trade practice by  

    the opposite parties?

III) If so, whether the complainant is entitled to any relief?

IV) Costs of the proceedings, if any?

6. Argument Notes Filed by Mr. Vishakh K.A., Counsel for the Complainant

1. The complainant, a retired Associate Professor from Government Medical College, Kottayam, now permanently residing at Gauri, P.D. Road, Palluruthy, Cochin-682006, purchased a Whirlpool side-by-side fridge (Make No. 20943 WPL, WS SBS 603 CRYS GOLD BCD: E124976) from the 2nd opposite party showroom on 8th May 2019, after exchanging an old fridge and making an additional payment of Rs. 87,000/- [Exhibit A1: True copy of the bill of purchase]. On 24th September 2021, the LED lamps in both the freezer and fridge stopped functioning permanently.
2. The complainant purchased the fridge based on advertisements and assurances from the opposite parties of lifelong services and genuine spare parts for effective maintenance. The complainant promptly complained with
3. the first opposite party on the same day through customer care and received a service request number COC 24092194680. The technician inspected the fridge but could not identify the cause of the problem. The complainant paid Rs.350/- as a service charge [Exhibit A2: True copy of the Lawyer notice]. Contrary to the allegations by the first opposite party, the complainant never refused to pay any charges.
4. Two days later, the technician informed the complainant that the switches on the fridge doors were defective and took one switch to place an order. However, the service centre later informed the complainant that the switches could not be replaced due to non-availability, and the fridge could be replaced upon payment of a depreciation amount. The complainant registered another complaint, receiving service request number COC 07102184202, and sent emails to Whirlpool, but no response was received from the service centre or head office. The complainant was asked to pay Rs.20,000 as a depreciation amount, which she agreed to pay, provided she received a different model to avoid a repeat of the same defect [Exhibit A3: True copy of the Postal receipt of the notice sent to the OP1].

On 23^rd October 2021, the complainant was informed that spare switches were available. However, only one switch was replaced, leaving the issue unresolved. The first opposite party  admitted this. This delay and incomplete service resulted in substantial inconvenience for the complainant.

5. The complainant alleges grave negligence and dishonesty on the opposite party's part by selling a fridge knowing it was faulty, with unavailable spare parts, and wilfully neglecting to redress the complaint. This caused irreparable injury, financial loss, mental strain, and hardship, constituting clear cheating and deficiency in service [Exhibit A4: True copy of the postal receipt of the notice sent to OP2].
6. The complainant sent a lawyer's notice to both opposite parties, requesting either the repair or replacement of the fridge within 15 days, but no response was received from the opposite parties, causing further injury [Exhibit A5: True copy of the Proof of delivery of notice to OP2].

The complainant denies all allegations made by the first opposite party, who has failed to produce any supporting documents or evidence against the complainant. The proof affidavit of the 1^st opposite party is also inadmissible due to insufficient information regarding the deponent's identity.

The opposite parties, particularly the first opposite party, as the manufacturer and service provider, had a statutory duty to provide timely and efficient service, which they failed to do. This failure constitutes a clear deficiency in service. Additionally, the opposite parties made false promises to the complainant, further proving their dishonesty and inefficiency.

The complainant also refutes the first opposite party claim of misjoinder of parties, asserting that all necessary parties have been properly listed. The default lies with the first opposite party, not any other party.

7. Given the essential nature of a refrigerator and its high cost, the complainant was entitled to timely repairs and service. The failure to do so, coupled with false promises and delays, amounts to a deficiency in service and unfair trade practices.
8. The opposite parties' failure to address the issue within a reasonable timeframe and their refusal to replace the fridge or honour their promises further exacerbate their liability.
9. The complainant prays that this commission directs the opposite parties to replace the fridge and compensate the complainant Rs. 2,00,000 for the irreparable injury, financial loss, and mental hardship caused by their negligence, irresponsibility, and dishonesty.

7. Arguments Filed by K.S. Arundas, Counsel for the First Opposite Party

1. The first opposite party contends that the complaint filed by the complainant is misconceived, erroneous, and untenable under the Consumer Protection Act, 2019. The grounds raised by the complainant are devoid of merit and reasoning, failing to meet the essential requirements of the Act.
2. It is acknowledged that the complainant purchased a Whirlpool refrigerator on 8^th May 2019, which was manufactured by the first opposite party. The product came with a warranty for 12 months, covering manufacturing defects [Exhibit A1: True copy of the bill of purchase].
3. The complainant's primary allegation is regarding the delay in replacing a minor part (door lamp switches). The first opposite party points out that the complainant deliberately omitted the service centre from the party array, making the complaint defective for non-joinder of necessary parties. Thus, the complaint should be dismissed in-limine.
4. Regarding the complainant’s claim of cheating, the first opposite party argues that this is outside the purview of the Consumer Protection Act. Numerous decisions by the National Commission have affirmed that such matters cannot be addressed by the machinery under the Act.
5. The first opposite party asserts that they provided a user manual and warranty card at the time of delivery, which outlined the terms and limitations of the warranty [Exhibit A2: True copy of the lawyer's notice]. The complainant has wilfully suppressed these documents to harass the first opposite party and gain unjustified benefits. This omission is critical, and the complaint should be dismissed for suppression of material facts.
6. On 24^th September 2021, over 28 months after purchase, the complainant reported an issue with the display unit on the fridge door. The technician from the service centre found that the defect was caused by physical damage to the switch, not a manufacturing defect. Since the warranty had expired, the technician provided an estimate for the repair, which the complainant refused to pay. The complainant's claim that the technician couldn’t identify the issue is false and denied [Exhibit A3: True copy of the postal receipt of the notice sent to OP1].
7. The first opposite party, recognizing the delay in receiving spare parts due to COVID-19 restrictions, offered to replace the refrigerator at a depreciated value as a goodwill gesture. However, the complainant demanded a more expensive model, which was unreasonable. When this demand was refused, the first opposite party still offered to replace the defective parts free of charge, which the complainant declined.
8. The delay in spare parts was beyond the control of the first opposite party, due to Covid-19 restrictions imposed by the government. Therefore, there is no deficiency in service or unfair trade practice on the part of the first opposite party.
9. The allegation that the refrigerator had a manufacturing defect is baseless and denied. Defects arising from mishandling, improper maintenance, or other external factors do not constitute manufacturing defects. No expert report was produced by the complainant to substantiate the claim, and thus, the complaint is liable to be dismissed.
10. The complaint appears to be filed with malicious intent and can be considered frivolous and vexatious. The complainant is attempting to extort illegitimate gains by suppressing material facts and unnecessarily harassing the first opposite party [Exhibit A4: True copy of the postal receipt of the notice sent to OP2].
11. The first opposite party emphasizes that they provided full support to the complainant in addressing the grievance. The complainant’s allegations of financial loss and mental agony are baseless, and the compensation claimed is without merit.
12. In light of the above, the first opposite party requests that the complaint be dismissed with costs in their favour, as it lacks merit and serves only to waste the time of this Commission.

            The evidence presented includes an ex-parte proof affidavit filed by the complainant, and it was unchallenged by the second opposite party. Therefore, the complainant's claims were considered credible and supported by the evidence. The second opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations levelled against them. The case of the complainant stands unchallenged by the second opposite party. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).

The complainant, Dr. M.G. Presanna, a 67-year-old retired Associate Professor, purchased a Whirlpool side-by-side refrigerator on 8^th May 2019 from the 2^nd opposite party. The refrigerator malfunctioned after 2 years and 4 months, with the LED lights in both the fridge and freezer sections going off permanently on 24^th September 2021. Despite multiple service complaints and a service request being raised, the problem remained unresolved. The complainant seeks compensation for the deficiency in service and mental stress caused by the opposite parties’ negligence.

         We have carefully considered the submissions made by the complainant and the first opposite party, as well as reviewed the entire evidence on record, including the argument notes presented by both parties.

1. Maintainability of the Complaint:

The complaint has been filed under Section 35 of the Consumer Protection Act, 2019, which entitles a consumer to seek relief against deficiency in service. The complainant, as a consumer who purchased a refrigerator for personal use, is covered under the definition of "consumer" in the Act. Furthermore, the complaint was filed within two years from the date of the cause of action, thus within the statutory period. Therefore, the complaint is maintainable before this Commission.

ii). Deficiency in Service or Unfair Trade Practice by the Opposite Parties:

The complainant has established that the refrigerator purchased from the 2^nd opposite party became faulty within 28 months, and despite prompt reporting, the opposite parties failed to provide an adequate resolution. The 1st opposite party acknowledged the malfunction but attributed it to physical damage rather than a manufacturing defect. However, the failure to provide timely service or spare parts amounts to deficiency in service as defined under Section 2(11) of the Consumer Protection Act, 2019.

Furthermore, the opposite parties failed to deliver on their promise of "lifelong services with genuine spare parts." This constitutes an unfair trade practice as defined under Section 2(47) of the Consumer Protection Act, 2019, as they made false representations regarding their after-sales service.

iii). Entitlement of Relief to the Complainant:

Given the established deficiency in service and unfair trade practice by the opposite parties, the complainant is entitled to relief. The complainant has sought Rs. 2,00,000/- as compensation for mental stress, financial loss, and inconvenience. The refrigerator is an essential household appliance, and the complainant's grievances have gone unresolved for an extended period, leading to unnecessary distress. Considering the facts and legal precedents, the complainant is entitled to both compensation and replacement of the refrigerator. The compensation is justifiable, considering the prolonged inconvenience caused.

iv)  Costs of the Proceedings:

The complainant has had to incur legal expenses due to the negligence of the opposite parties. Therefore, the complainant is entitled to the costs of the proceedings.

8. Deficiency in Service and Negligence

The opposite parties, especially the 1st opposite party as the manufacturer, owed a duty to provide adequate post-sales service, including the supply of spare parts. Their failure to address the issue promptly, coupled with their inability to replace or repair the defective refrigerator, constitutes negligence.

9. Liability of the Opposite Parties

The 1^st opposite party, as the manufacturer, and the 2^nd opposite party, as the seller, are jointly and severally liable for the deficiency in service and the unfair trade practices committed. As per the Consumer Protection Act, 2019, both parties are liable to compensate the complainant for the mental agony, inconvenience, and financial loss suffered.

The failure to repair or replace the refrigerator and the opposite parties’ reluctance to fulfil their warranty obligations indicate a deficiency in service. The opposite parties' defense that the complainant’s issue was due to physical damage does not absolve them of their responsibility to provide timely service and spare parts, especially given that the refrigerator’s malfunction was unrelated to any physical mishandling by the complainant.

Furthermore, the 2^nd opposite party's failure to file their version within the statutory period and their subsequent ex-parte status further strengthens the complainant's case.

            The Commission acknowledges that household appliances like refrigerators form an integral part of everyday life, especially for individuals like the complainant, a retired professor who depends on them for comfort and convenience. The breakdown of such a critical appliance, compounded by months of unresponsive service and unresolved issues, can have a profound emotional and mental impact. This case not only reflects a legal failure but also a disregard for the trust consumers places in reputable brands. Businesses must honour the promises they make to customers, especially when those promises directly affect daily life and well-being. By failing to do so, they jeopardize the emotional and financial investments consumers make. This judgment seeks to restore that trust and ensure justice is delivered to the complainant, whose patience and faith in the system have been undeservingly tested.

            We determine that issue numbers (I) to (IV) are resolved in the complainant's favour due to the significant deficiency in service and the unfair trade practices committed by the opposite parties. The complainant has endured considerable inconvenience, mental distress, hardships, and financial losses because of the negligence of the opposite parties.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.

Hence, the prayer is partly allowed as follows:

I.        The opposite parties are directed to replace the defective refrigerator with a new model of the complainant’s choice, without requiring any additional payment.

II.       The opposite parties shall also pay ₹50,000 (Rupees Fifty Thousand Only) to the complainant as compensation for the loss, damages, and mental agony suffered due to their negligence, unfair trade practices, and deficiency in service. This amount is awarded for the deficiency in service and the unfair trade practices, as well as for the mental and physical hardships endured by the complainant.

III.      The opposite parties shall pay ₹10,000 (Rupees Ten Thousand Only) towards the cost of the proceedings.

              The opposite parties are jointly and severally liable for the fulfilment of the above orders, which must be executed within 45 days from the date of receiving this order. Failure to comply with the payment orders under Point No. (II) will result in interest at the rate of 9% per annum from the date of filing the complaint (28.12.2021) until the date of full payment realization.

Pronounced in the Open Commission on the 24^th day of September 2024.

Sd/-

D.B. Binu, President

Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia T.N., Member

                                                                                      Forwarded by Order

                                                                                      Assistant Registrar

APPENDIX

Complainant’s evidence

Forwarded by Order

• Exhibit A1: True copy of the bill of purchase of the refrigerator from the 2^nd  opposite party.
• Exhibit A2: True copy of the lawyer notice sent to both the opposite parties.
• Exhibit A3: True copy of the postal receipt for the notice sent to the 1^st  opposite party.
• Exhibit A4: True copy of the postal receipt for the notice sent to the 2^nd  opposite party.
• Exhibit A5: True copy of the proof of delivery of the notice to the 2^nd  opposite party.

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