DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.89/02.07.2008 Decided on : 25.02.2009 Sh.Vinay Kumar Bansal S/o Sh.Girdhari Lal S/o Sh.Arjan Dass, resident of Professor Colony, Near residence of Bimaljit Singh, Advocate, 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 Sh.Vinay Kumar Bansal son of Sh.Girdhari Lal, 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 compensation, in the sum of Rs.50,000/-, and in the alternative, to refund the cost of the fridge, in the sum of Rs.8,100/-, and charges paid on account of repair thereof in the sum of Rs.1200/- along with costs in the sum of Rs.1500/- and interest @ 12 percent per annum with effect from 15.6.2002 till date of actual payment. 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.8,100/- vide bill No.3274 dated 15.6.2002. 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 Consumer Forum. After purchase of the fridge, the complainant found manufacturing defect therein, 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 week, but they failed, to remove the defect before the complainant made a formal complaint to customer care Centre of the OP No.1. Thereafter, an engineer was deputed by OP No.1, who visited the house of the complainant on 17.6.2005 and changed the drier and gas. He made entry in the Job Sheet and charged a sum of Rs.450/- from the complainant. He again visited his house on 26.4.2008 and changed the compressor, drier, gas, relay and some other parts vide Job Sheet of even date, 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. At the time of sale, the opposite parties had given warranty for a period of 7 years from the date of purchase of the fridge for its proper functioning. The officials of the opposite patties have detected the Contd........3 : 3 : manufacturing defect in the fridge of the complainant, but they refused and instead of removal of the defect, they misbehaved with the complainant, 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 warranty period on the products manufactured by the answering opposite party is given for 1 year and thereafter free services for compressor only are provided for a period of 6 years, but the complainant has misused the process of law and misrepresented the facts before this Forum; that complaint is barred by limitation and warranty period of 1 year from the date of sale has expired; that the complainant has misrepresented the facts before the Forum; that there is no deficiency in service on the part of the answering opposite party; that fridge purchased by the complainant had no manufacturing defect and his allegations are based on concocted facts and are baseless; that the complainant has not approached the Forum with clean hands, as such, he is not entitled to the grant of relief prayed for and his complaint is not maintainable. On merits, the factum of purchase of fridge by the complainant is not denied and it is not disputed that it was manufactured by the answering opposite party. It is contended that complainant be put to strict proof to prove his plea that the fridge purchased by him had any manufacturing defect or had not been cooling the air. It is submitted that allegations made in the complaint are false and vexatious, because no complaint, has been filed by the complainant, within the comprehensive warranty period of one year i.e. on 14.6.2003. It is submitted that second complaint, has been filed by the complainant on 26.4.2008, after about 3 years, from the first complaint filed on 17.6.2005. It is denied that authorized representative of the OP No.1, has misbehaved with the complainant. It is submitted that fridge was repaired to the full satisfaction of the complainant. It is contended that compressor of the fridge in question still falls in warranty period and the defect, if any, Contd........4 : 4 : may be removed by the answering opposite party, but defects in the remaining parts cannot be removed, because they are beyond one year period of warranty. It is denied that complainant is consumer or that he is entitled for the replacement of the fridge and payment of charges on account of 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 admitting that a fridge, manufactured by the Whirlpool Company, was purchased by the complainant vide bill dated 15.6.2002, but it is denied that complaint of the complainant was attended by the officials of the answering opposite party. It is denied that warranty was given for a period of 7 years after the date of purchase or the fridge purchased by the complainant has any manufacturing defect. 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. At the out set, Sh.Vishvpreet Garg, Advocate, learned counsel for the opposite parties, has submitted that complainant, has purchased fridge on 15.6.2002, but he has filed the instant complaint on 2.7.2008, 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 as per the copies of the job cards produced on record by the complainant, the fridge has been repaired on 17.6.2005 and 26.4.2008, but it still not functioning. Learned counsel argued that cause of action has accrued to the complainant to Contd........5 : 5 : file the complaint after 26.4.2008 when the opposite parties failed to put his fridge in order, as such, complaint filed by the complainant on 2.7.2008 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 cause of action has arisen. As per the admitted facts, warranty for a period of one year, for proper functioning of the fridge, was given, by the manufacturing company i.e. OP No.1, to the complainant on all its part, except the compressor, for which extended warranty, was given for a period of 6 years. The complainant, has made complaints regarding the manufacturing defect in the compressor of his fridge during the warranty period, as evident from copies of job card Ext.C-2 and C- and his. fridge has been repaired by the manufacturer on 17.6.2005 and 26.4.2008. As per certificate Ext.C-4, issued by M.R.V. Motors Garage, Mansa dated 20.6.2008, the manufacturing defect in the fridge purchased by the complainant, has not been removed so far. As such, cause of action to file the complaint, has accrued on 26.4.2008 and complaint filed by him on 2.7.2008, 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 manufacturer is prepared to effect the repairs, if any, in the fridge purchased by the complainant, but its replacement cannot be ordered by this Forum, even if, the plea taken by the complainant, be accepted on its face value. Learned counsel has further argued, that manufacturer is prepared, to remove the defect, 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 Contd........6 : 6 : submitted that the opposite parties, have failed to remove the defect in the fridge purchased by the complainant and warranty period, has not expired so far, as such, they have no option, but to replace the same and to pay compensation and costs, as demanded by him in his complaint. 12. We do not find merit in the argument advanced by the learned counsel for the opposite parties, because it stands established by the affidavit of the complainant Ext.C-5 and certificate, issued by M.R.V. Motors Garage, Mansa dated 20.6.2008, Ext.C-4, that manufacturing defect in the fridge purchased by the complainant, has not been removed, despite repair thereof twice, by the manufacturer, on his request. It is not disputed that period of warranty for compressor of the fridge, had not expired on the date of filing of the instant complaint, and for the same reason repair appears to have been effected by the manufacturer twice on the dates mentioned above. Therefore, interest of justice demand, that direction may be given to the manufacturer i.e. OP No.1, to replace the compressor of the fridge, purchased by the complainant, with a new compressor of same description, as permissible under Section 14(b) of the Act. 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 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 OP No.1, as such, it has no liability for the manufacturing defect in the compressor of the fridge purchased by the complainant. 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 that compressor of the fridge purchased by the complainant be replaced with a new compressor, of the same description, within a period of 2 months, from the date of receipt of the copy of this order. The OP No.1 is also burdened, in the sum of Rs.2,000/-, on account of compensation and in the Contd........7 : 7 : sum of Rs.1,000/-, on account of costs. The above said amount be also paid to the complainant within the period stipulated above. 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.
