Consumer Complaint No:78/09


Between:

Jayalakshmi Traders, Rep. by its Proprietrix, Narava Anuradha, W/o Appa Rao, Hindu, aged 57 years, R/o Sri Rama Apartments, Gokul Road, Maharanipeta, Visakhapatnam

… Complainant
And:

1. Whirlpool of India Ltd., rep. by its Managing Director, Consumer Service H028 NIT, Faredabad.
2. Sri Maruthi Engineering, Authorized Service Partner of Whirlpool Home Appliances, N.O.H.No.47-3-35, 5th Lane, Dwarakanagar, Visakhapatnam-16.
... Opposite Parties

This case coming on for final hearing on 09-04-2009 in the presence of Sri.A.V.C.N. Nageswara Rao, Advocate for the Complainant and of the Opposite Parties remained exparte and having stood over till this date, the Forum delivered the following:

: O R D E R :

1.The complainant purchased Whirlpool Refrigerator from the opposite parties on 01-03-2007 for Rs.25,500/- under Ex.A.1. It has got a guarantee period of five years. It is complained that within two months of purchase, the set went out of order with manufacturing defect and the opposite party could not get it rectified. Ex.A.4 and Ex.A.5 would prove the complainant’s claim that it was taken to the service centre on those days for repairs. The grievance of the complainant is that inspite of manufacturing defect, it was not rectified nor it was replaced with new refrigerator. Hence the complaint. It is preceded by Ex.A.6 legal notice dated 16-12-2008 and Ex.A.7 and Ex.A.8 are the acknowledgements from the opposite parties.
2.Though opposite parties entered appearance through an advocate, did not contest the claim and ultimately remained exparte.
3.Heard. Satisfied about the complainant’s claim in view of the documents and pleadings. In view of the inconvenience faced by the complainant by the defective refrigerator, apart from giving refund of the price of the refrigerator, it would be just and proper that the opposite party shall pay Rs.10,000/- (Rs. Ten thousand only) as compensation.
4.In the result, the complainant is allowed, directing the opposite parties to refund Rs.25,500/- (Rs. Twenty five thousand five hundred only) with interest @ 9% p.a. from 16-12-2008 till date of payment and also to pay damages of Rs.10,000/- (Rs.ten thousand only) for the mental agony. Opposite party is further directed to pay cost of Rs.2,000/- (Rs. two thousand only) to the complainant. Advocate fee is fixed at Rs.3,000/- (Rs.three thousand only).

Dr. B.K. Mohindra, 630/18, Kundan Puri, Civil Lines, Ludhiana.

Versus

1- CEO, Whirlpool India Limited, B1/A-12, First Floor, Mohan Corporative Industrial Estate, New Delhi-110044 through its Mg. Director/Director.

2- Shehnai Video Center, 576, Link Road, near Preet Palace, Ludhiana through its Prop.

1- Complainant purchased a Window Air Conditioner Model no.WAGB151G216104, Serial no.INQ031600266/16A04 on 12th June, 2003 from opposite party no.2 vide invoice no.8794. He also purchased home care plan vide application no.GT02013755 Plan Code 101955 dated 21st August, 2003, for an amount of Rs.1620/- for a period of 58 months. Despite such purchase and reminders, opposite party deputed none to install the air conditioner. Within one week of purchase, the AC went out of order and was to be taken to local service centre of opposite party vide complaint no.796 dated 27.6.2003.

The complaint was attended by Sh. Satnam Singh. The air conditioner did not work again and was repaired on 30.6.2003. Service centre of opposite party provided only one service on 7.9.2005 and none turned up from opposite party no.2 for maintenance purpose. The AC was not giving proper cooling and again developed problems, so complaint was made on 30.6.2006. The AC was returned to him on 19.9.2006 and during this period, was prevented during summer season, to use AC for two and a half months. He took up matter by writing letters to the opposite parties, but they never responded and thereafter, lodged complaint dated 16th May, 2007 with the customer care of the opposite party. Nothing was done nor his complaint was attended despite contacting them again on 18th May, 2007. Some technician came on 19th May, 2007 an then removed the AC for repair on 21st May, 2007. The AC ultimately was returned on 28.5.2007 but again, it was not providing proper cooling, So, claimed that the AC sold by opposite party, was defective. By not removing and replacing the same with new one, they are guilty of deficiency in rendering services. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, claiming Rs.50000/- as compensation for deficiency in service.

2- Opposite party no.1 in reply pleaded that complaint is abuse of process of law. There is no consumer dispute or deficiency in service or breach of contract on part of opposite party. Complainant had not taken services of opposite party no.1, to be provided under home care plan. Nor he has filed any report regarding defect in the AC. Complaint is filed with malafide intention to harass them. Warranty of the AC has already expired. The home care plan period is also going to expire on 2.6.2008. He is having malafide intention to get undue advantage. AC is not having any defect. They never denied services to the complainant. In case, there was defect in the AC, under home care plan, same can be rectified by approaching opposite party no.1 through this Fora and they assured the Fora to set the AC right under home care plan. But complainant has no cause of action in his favour. He has filed the complaint on time barred allegation with malafide intention, to extract money. AC is not having any defect at all.

3- Opposite party no.2 by way of separate reply, claimed that home care plan was purchased by the complainant directly from opposite party no.1 and he has no authority to sell such plan. It is claimed that the AC was installed on the same day of the purchase from them by the complainant. His allegations that it was not installed, are false. There was no defect in the AC. No complaint qua defect was made by the complainant. He never informed qua home care plan from opposite party no.1. Complainant never brought the AC to them with any complaint. The AC was in perfect, proper working condition. Hence, there is no deficiency in service on their part. So, not liable for any compensation.

4- Complainant and opposite party no.1 adduced evidence in support of their claims and stood heard through their respective counsels.

5- However, no evidence was led by opposite party no.2 despite availing sufficient opportunities for this purposes, nor anybody appeared on their behalf on 25.3.2009, therefore, was proceeded exparte.

6- This AC was purchased by the complainant vide invoice dated 12.6.2003 from opposite party no.2. Allegation of the complainant that it was not installed by the opposite party after sale, has to be brushed aside, in view of his own admission in the complaint that within one week of purchase, unit has to be removed to service centre of opposite party, for repair vide complaint dated 27.6.2003. It means AC was installed and went in operation. So, claim of deficiency in service, in not installing the same, is false.

7- Though complainant in his complaint, has mentioned many problems in AC and filing many complaints with opposite party, but no record qua making such complaints, has seen light of the day. It means record qua such complaints, as alleged by the complainant in his complaint, was possessed by him, but not produced. So, we shall be legitimate to assume that had he brought such record, would have gone against him, so withheld the same.

8- Also there is no proof brought by the complainant that the AC is not working properly or not giving proper cooling. Opposite party had given offer to the complainant in their written statement that he can get, through intervention of this Fora, AC examined from an expert and if directed, they are ready to examine the same. But complainant never availed that provision of Section 13 of the Consumer Protection Act, by requesting the Fora, to get it examined from an expert. Nor sought directions against opposite party, to test the same. Therefore, we take that no defect in AC, is established. Even otherwise, period of warranty on AC, has already expired.

9- No doubt, complainant took home care plan from opposite party no.1, as evidenced by letter Ex.C2 dated6.12.2003 of the consumer service of opposite party no.1. This home care plan was valid upto 20th August, 2007. So, it means that opposite party no.1 would be liable to render services qua AC of the complainant till 20th August, 2007. The complaint was instituted after expiry of contract period of home care plan on 5.9.2007. Though home care plan had expired on 20th August, 2007. Complainant had issued notice Ex.C4 dated 14.9.2006 through courier receipt Ex.C3 to opposite party no.1.

He had conveyed therein that after one week of purchase, AC was to be taken to local service centre, for repair vide complaint dated 27.6.2003. It was again repaired on 30.6.2003. The service centre provided one service only on 7.9.2005. Complaint was lodged qua working of the AC on 30.6.2006. But he nowhere says that his complaints were not attended, by not saying so, means that complaints were attended. Thereafter, his claim was that till date, AC was not working qua which, made complaint, but no action taken. Further claimed that spent Rs.400/- qua his complaint dated 30.6.2006. But if AC is not working, such non working can not be attributed to manufacturing defect. As warranty of the AC is over. Opposite party was only obliged under the contract of service, to render services to the complainant and nothing more. Therefore, complainant sent legal notice Ex.C4 under postal receipts Ex.C5 and Ex.C6 to both the opposite parties.

10- Whereas, opposite party no.1 through affidavit of Sh. Deepak Kumar Ex.RW/1, its Senior Service Executive, have sworn contents of its reply.

11- As under the contract, opposite party no.1 was supposed to render services under home care plan to the complainant upto 20th August, 2007, which services probably were rendered, as per admission of the complainant, so we feel there is no deficiency in service on part of the opposite party. However, as the complainant has apporoached the Fora and in view of reply of opposite party no.1 that they are ready to rectify the defect, if any, in the AC, if given directions to them. In view of such plea, we direct opposite party no.1 to check, inspect AC of the complainant and repair it in terms of home care plan Ex.C2, as a special case, within 45 days of receipt of copy of order

Surjit Singh, aged 51 years son of S. Gurdial Singh, resident of 96, Dev Nagar, near Rishi Nagar, Ludhiana.
(Complainant)
Vs.

1. Next, M/s Barnala Trading Company, Barnala Automobile Building, 3367, Ferozepur Road, Ludhiana through its prop./partner/M.D.

2. Whirlpool of India Limited, Plot No.40, Sector 44, Gurgaon-122002, Haryana, through M.D.

(Opposite parties)
O R D E R

2. Case of the complainant is that purchased Whirlpool 260 L Fusion refrigerator for Rs. 13,094.50p from opposite party no.1 vide bill no.238336 dated 19.3.2008. The refrigerator carried warranty of five years. But the refrigerator proved to be of inferior quality having manufacturing defect. There was a problem in the door of the refrigerator from the beginning. Opposite party no. 1 several times was apprised of the door problem, who assured to do the needful, but said promises proved to be false. Hence, representation in writing on 27.6.2008 was made to opposite party no.1 and subsequently reminder dated 9.7.08 was also given.

Consequently, representative of opposite party no.1 visited the house of the complainant and after checking the refrigerator he found that the same had manufacturing defect which can not be removed. Due to such a reason he could not use the refrigerator for the purpose purchased by him, which consequently caused harassment and agony. So, served legal notice dated 25.7.2008 claiming compensation of Rs.50,000/- and to remove the defect in the refrigerator. Notice sent to opposite party no.2 was received back unclaimed. Hence, complainant prays to direct the opposite parties to replace his defective refrigerator or to refund its price and to pay him compensation of Rs.50,000/- and litigation costs of Rs. 11,000/-.

3. Opposite party no.2 filed reply by taking plea that they have been providing after sale service. Complaint of the complainant was attended but he refused to get the refrigerator inspected from said executive of the opposite party. Under warranty, complainant was obliged to set right the refrigerator by repairing or replacing the defective part. They offered to replace the door of the refrigerator under terms of warranty, as a gesture of goodwill and to maintain satisfaction of customer. No assurance was given to replace the complete refrigerator. Complainant as such has no cause of action. There is no deficiency in service on their part. Complaint is filed with malafide intention. Complainant has failed to prove his allegations of defect in door of the refrigerator nor the same has any manufacturing defect. They have pleaded that this Fora may get the refrigerator tested from any appropriate laboratory and obtain expert report. They have prayed for dismissal of the complaint.

4. Opposite party no.1 did not contest the complaint and is being proceeded ex-parte.

5. Both the parties adduced their evidence by way of affidavits and documents and stood heard through their respective counsels.

6. Complainant has come with the prayer of defect in the door of the refrigerator. No other defect therein is alleged by him. In support of such allegations, complainant has relied on his own affidavit Ex.CW1/A as well as invoice Ex.C.1 under which purchased refrigerator from opposite party no.1 and legal notice Ex.C2 with postal receipts Ex.C3 to C5. But no expert was examined by the complainant to prove defect in door of the refrigerator, due to which he was unable to use the same.

7. Whereas opposite party no.2 has filed affidavit of Sh. Ankit Bansal on behalf of opposite party no.2 who claimed in his affidavit reply of opposite party no.2 to be correct.

8. At the time of arguments Sh. Govind Puri ld. counsel for opposite party no.2 again offered to check the refrigerator in case of its production by the complainant and to repair the door of the refrigerator. As the complainant has failed to place on record any report of expert that the refrigerator is having manufacturing defect due to non closure of the door, so we have no material to support such plea. But in view of assurance and undertaking given by ld. counsel for opposite party no.2, we allow this complaint and consequently direct opposite party no.2 to inspect and check, on production of refrigerator by the complainant at its work place and to repair door of the refrigerator, if found repairable or to replace the same. Opposite party no.2 would be liable to act on this direction, subject to production of refrigerator by the complainant at its work place within 30 days of receipt of copy of the order.