IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 27^th day of November, 2021

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member,

Sri. K.M. Anto, Member

C C No. 234/2018(filed on 01-11-2018)

Petitioner                                   :   Anila Sunny,

                                                      Vettikkattu, Athirampuzha P.O.,

                                                      Kottayam – 686562.

                                                      (Adv.Gemini Abraham)

                                                                      Vs.                                            

Opposite parties                         : 1)   Whirl Pool India Ltd.,

                                                          Corporate Office, Plot No.40,

                                                           Sector-44, Gurgaon-122002.  

        (Adv. Manu J.Varappally & K.S.Arundas )

                                                    2)   Bismi Appliances, V111/132,

                                                           Near Mathrubhoomi, Nagampadom,

                                                           S.H Mount P.O.-686006, Kottayam.

                                                            O  R  D  E  R

Smt. Bindhu R. Member

The complaint is filed under Section -12 of the Consumer Protection Act 1986.

          The first opposite party is a manufacturer of home appliances and the second opposite party is an authorized agent of the first opposite party.  The complainant purchased a Whirlpool Refrigerator 313D Protton Roy Alpha Steel 3115 on 06.09.2014 for the price of Rs.33,000/- (Rupees Thirty Three Thousand only) which was manufactured by the first opposite party. As per the warranty given at the time of purchase the first opposite party had assured warranty for the product if the same fails to operate under normal use and service due to defects in design, materials or workmanship.   A few months after purchase the said refrigerator started showing complaints and the major portion of the refrigerator was affected by rust.  This was noticed on 05/08/2015 onwards.  Apart from this the refrigerator had malfunctioning on 27/11/2017 and again on 08/03/2018.  It is due to low quality materials used by the company for the production of the refrigerator.  On 27/11/17 and 08/03/18 the complainant approached the authorized service centre but no proper service had been given to the complainant. Despite several requests the opposite parties did not turn up  to the defects and though the complaints were brought to the notice of the opposite parties from 05/08/2015 onwards.  No action was taken from their part.  So both the opposite parties are jointly and severally liable for the deficiency of the services rendered to the complainant.  The complainant is legally entitled to repair or to replace the product and is also entitled to get compensation for the sufferings and hardship caused to him and hence the complaint is failed. 

          Upon notice, the first opposite party appeared and filed version.

          The second opposite party though received notice did not appear or file version and so set ex-parte.

          The first opposite party raised contentions defending the allegation in the complaint that the complaint is filed as a experimental litigation for undue gains.  Admittedly the complainant purchased the refrigerator on 06.09.2014 after paying the full amount and to her full satisfaction.  The refrigerator was provided with one year warranty and 10 year warranty for its compressor.  The complainant contacted the opposite party for repairing the defect only after three years from the purchase.  Immediately the technician of the opposite party inspected the refrigerator and he corrected the defect though it was a minor defect occurred due to abnormal usage.  After four months the complainant again contacted the opposite party stating “cooling issue”.  Again the technician visited to rectify the defects though it was not a manufacturing defect.  The complainant had never reported the complaint of the rust to the opposite party and even if their occurred such defects it is not a manufacturing defect. The opposite party extended full support and assistance to the complainant with respect to her complaints and quality of the materials used in the refrigerator is of high standard.  Hence, there are no defects of service on the part of the first opposite party.  In the evidence part the complainant has adduced evidence vide proof affidavit and Ext.A1 to A5 series.  A3 and A4 were produced by the opposite party.  Opposite parties have no evidence.

          Considering the pleadings and evidence we have arrived at framing the two issues.

Issue No.1 

1. Whether the complaint is barred by limitation.
2. Whether the complainant has successfully proved the alleged manufacturing defects.
3. If so what are the reliefs the complainant is entitled for ?

Issue No.1

The complaint case is that refrigerator purchased by her from the opposite party became defective due to manufacturing defect and even on several request the opposite party did not cure the defects. Whereas the appearing first opposite party denied of the allegations.

The first opposite party put forward their arguments by filing an argument note.The opposite party argued that the complaint is barred by limitation as the alleged defect was occurred on 05/08/2015.But present complaint is filed on 01/11/2018 which is after a period of three years.The complainant’s allegation is that the complaint of the refrigerator started on 05/08/2015 onwards and on 27/11/2017 and on 08/03/2018 again some cooling complaint were noticed.Ext.A3 & A4 shows that on both these dates the authorised service centre had repaired the said refrigerator.In the version the first opposite party themselves admit that the complainant contacted the opposite party for reporting some defect after three years from the date of purchase and after four months she again contacted for requesting service.The first opposite party admitted that they had sent a technician on both occasion and occurred the defect.So the cause of action arose on 08/03/2018 and continues thereafter.The complaint is seen filed on 01/11/2018.So there is no limitation in filing the complaint.

Issue No.2

  The complainant alleges that the refrigerator purchased from the opposite parties started showing defects which was allegedly manufacturing defects.  But the complainant has produced only the purchase bill and the bills issued by the service centre.  The complainant has not taken any proof to prove manufacturing defects with the help of an expert appointed by this Commission.  So the allegation of the manufacturing defects is not established.  It is evident that the refrigerator purchased from the opposite party by the complainant with some defects within the warranty period.  The admission by the first opposite party in their version that they had sent a technician for two times to rectify the defects of the refrigerator is sufficient to presume that the refrigerator was defective.  Ext.A3 is issued by the Hi-Tech Engineering on 27/11/2017 (Whirlpool Authorized Service Centre).  Ext. A4 is a bill issued by the same service centre on 08/03/2017. Though the first opposite party objected the marking of the A3 & A4 documents they have admitted in the version that after three years from the date of purchase when the complainant contacted them stating that there was a defect with her refrigerator, immediately the technician of the opposite party’s authorised service centre examined the same and found that there was poor cooling and the technician rectified the said defects.  After four months again there occurred the same defects and the technicians visited again and rectified the same.   Ext.A3 & A4 documents were found produced which prove that the service was given by the opposite party.

The opposite party sited certain judgements of the apex Commission regarding the importance of the expert evidence to prove the manufacturing defects.  As the settled position is that to prove the manufacturing defects undoubtedly a report of an expert appointed by the Commission is necessary.  So our considered opinion is that the complainant could not succeed in establishing the manufacturing defects of the refrigerator.

Issue No.3

          Though the alleged manufacturing defects were not proved, it is evident from the facts and evidence on record that the refrigerator purchased by the complainant from the opposite parties had some major defects within the warranty period.  The opposite parties are liable to cure the defects caused to the refrigerator sold by them within the warranty period.

          Hence in the light of the above discussion we allow the complaint in part and pass the following order:

1. We direct the opposite parties to rectify the defects of the refrigerator free of cost.
2. The opposite parties are directed to pay Rs.20,000/- to the complainant along with an interest at the rate of 9% from the date of filing this complaint.  The opposite parties are directed to pay Rs.2,300/- to the complainant as litigation cost. 

The order shall be passed within 30 days from the date of order in default of which interest at the rate of 6% shall be given to the amount of compensation.   

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 27^th  day of   November, 2021.

            Smt. Bindhu R.  Member        Sd/-

          Sri. Manulal V.S. President   Sd/-

          Sri. K.M. Anto, Member         Sd/-

Appendix

Exhibits marked from the side of complainant

A1- Usage manual (including warranty card) issued by opposite party

A2- Bill no.195063 dtd.06-09-2014 issued by opposite party

A3- Cash receipt No.3355 dated 27-11-2017 issued by opposite party

       (subject to object)

A4 - Cash receipt No.4733 dated 08.03.2018 issued by opposite party

       (subject to object)

A5 – Series-Photographs(6 nos)

Exhibits marked from the side of opposite party

Nil

                                                                                      By Order 

                  Senior Superintendent