Next Retail

**Sidhant** · 09-21-2009, 04:28 PM

Smt. T. Padma Latha Devi,

W/o K.R. Raju, Hindu, female, aged 40 years

D.No.14-23, Near Inter Mess, Besides Prayer

House, Vidyanagar, Eluru, W.G. Dist., -- Complainant

1. The Manager, Next Retail India Ltd.,

Near Baroda Bank, Main Road, Eluru

W.G. Dist.,

2. I.F.B. Industries Ltd.,

(Home Appliances Division)

32&33, 1st Floor, Satyanarayana Mansion

Chittareddy Colony, Tarbund X Roads

Secundrabad -09 -- Opposite Parties

O R D E R

The complainant filed the present complaint under Sec. 12 of the Consumer Protection Act with a prayer to direct the opposite parties for replacement of the defective washing machine with a new one or to repay the costs of the unit ie., Rs.11,500/- with interests at the rate of 24% pa., thereon and also to pay a sum of Rs.25,000/-towards compensation for the mental agony and also costs of the complaint. The averments of the complaint in brief are that :

1. The 1st opposite party is a seller of Home appliances having office at Eluru and the 2nd opposite party is a manufacturer of Home appliances having office at Secunderabad and doing business throughout Andhra Pradesh by supplying Home appliances to the retail shops.

2. The complainant, a resident of Eluru for his family purpose, purchased a washing machine on 24-9-2008 for a costs of Rs.11,500/- from the 1st opposite party who received costs and issued cash bill for the same and also warranty card for a period of two years, besides collecting a sum of Rs.562/- for installation and accessories charges under a separate bill and installed the unit at the house of the complainant.

3. After installation of the unit, the complainant, on noticing malfunctioning of the unit, reported the same to the opposite party No.1 on 1-10-2008 who in turn attended and repaired the unit temporarily. Again when the unit posed malfunctioning and on reporting by the complainant, the 1st opposite party attended and repaired the unit partially on 5th and 6th of October, 2008. On 16-10-2008, when the unit again started malfunctioning and on complaint made by the complainant, the 1st opposite party attended and rectified the defects in the unit and the unit was stopped functioning after three days despite repairs made by the 1st opposite party.

Thereupon, the complainant, having suspected that there are manufacturing defects in the unit, made a request to the 1st opposite party for exchange of the unit, but the 1st opposite party rejected her request. Then the complainant got issued a legal notice to both the opposite parties on 6-11-2008 demanding them for exchange of the unit with a new one. But the opposite parties even after acknowledging the receipt of the legal notice also, kept quite without replacing the unit and not given any reply even.

4. In view of the frequent malfunctioning of the unit, the complainant and her family members lost their peace of mind and put to a lot of physical and mental strain by getting their clothes washed daily with a washer man by incurring more money. The acts of the opposite parties in not replacing the defective washing machine with a new one and their non-giving any reply even to the legal notice issued by the complainant amounts to deficiency of service on their part. Thus the present complaint is filed for the aforesaid reliefs.

5. The 1st opposite party filed its version denying the material averments of the complaint and stated that as per the warranty given to the goods purchased by the complainant there is no promise for replacement of the washing machine and the company is not liable for any incidental and consequential damages.

It is further stated that after receiving complaint from the complainant, this opposite party arranged the technician by name one Omprakash and got the defects rectified to the satisfaction of the complainant that again on the instructions of the company, the technician approached the complainant along with one Suresh for complying the complaints and put the washing machine in good condition and the complainant satisfied for the same and that when the complainant again complained, this opposite party arranged technician to rectify the fault, but the complainant with a view to get a new piece, did not allow the technician to get repair or to rectify the problem, as such this opposite party never rendered and deficiency of service, and the complainant made false complaint against this opposite party to get wrongful gain and thus the complaint is liable to be dismissed with costs.

6. The 2nd opposite party filed Memo adopting the version filed by the 1st opposite party.

7. Then the complainant in support of her claim filed her affidavit corroborating the averments of the complaint and got marked Exs A.1 to Ex A.7. On the other hands, the 1st opposite party filed his affidavit and got no documents marked, while the 2nd opposite party did not choose to file any separate affidavit, but however adopted the affidavit of the 1st opposite party.

8. The points for determination now are :

1) Whether the deficiency in service as alleged against the opposite parties by the complainant is proved ?

2) Whether the complainant is entitled for the reliefs sought for by her ?

3) To what relief ?

POINT No: 1 :

As per the version and affidavit filed by the opposite parties, it is a fact borne out from the record that the 2nd opposite party is a manufacturer of home appliances and doing business throughout Andhra Pradesh by supplying home appliances to the retail shops and the 1st opposite party is the seller of home appliances supplied by the 2nd opposite party at Eluru. As per Ex A.1/Cash Receipt, Ex A.2/Warranty Card and Ex A.3 and A.4/other cash receipts for installation and accessories, it is a fact borne out from the record that the complainant purchased the washing machine in question from the 1st opposite party and got installed in her house with necessary accessories by paying requisite amount covered under Ex A.1, and Ex A.3 to Ex A.4/Cash Receipts.

As admitted by the 1st opposite party through his version and affidavit, it is also a fact borne out from the record that from the date of purchase of the washing machine ie., 24-9-2008 onwards, it underwent several repairs on several dates between 1-10-2008 to 16-10-2008. The contention of the opposite parties is that as and when the complaint received from the complainant, the technician of the opposite parties attended to the complaint and rectified the fault to the washing machine to the utmost satisfaction of the complainant.

As such, the opposite parties never rendered any deficiency in service. At another stage, the contention of the opposite parties is that when the complainant again made a complaint for the last time on 16-10-2008, the opposite parties arranged technician to rectify the fault but the complainant did not allow the technician to rectify the problem only with a view to get a new piece. Except taking such a plea, the opposite parties failed to establish the said contention.

On the other hand, it is the case of the complainant that on 16-10-2008 when she reported the matter to the 1st opposite party about the mal-functioning of the unit, on the same day, the 1st opposite party has attended for rectification of the defect in the said unit and it was stopped functioning after 3 days and when she again brought the malfunctioning of the unit to the notice of the 1st opposite party with a request to exchange the unit, the 1st opposite party rejected her request and ultimately failed to give any reply even to the legal notice got issued by her and therefore there is deficiency in service on the part of the opposite parties in rendering service to her.

But the opposite parties having taken a plea at one breath that the complainant did not allow the technician to rectify at another breach their contention is that as per the warranty given to the goods purchased by the complainant, there is no promise for replacement of the washing machine and the company is not liable for any incidental or consequential damage.

As stated above, admittedly, the washing machine in question, purchased by the complainant from the 1st opposite party, started malfunctioning from the date of its purchase itself and it appears that the 1st opposite party admittedly attended its repairs for several times. It is not the case of the opposite parties that such defects were occurred due to proper non-handling of the same by the complainant. When the washing machine was admittedly underwent several repairs from the date of its installation itself and due to the absence of any material on record placed by the opposite parties that such defects were arose due to proper non-handing of the same by the complainant, it can easily be presumed that its malfunctioning was only due to the manufacturing defect. As per Ex A.2 warranty card, the washing machine purchased by the complainant was under warranty.

The contention of the opposite parties is that as per the warranty given to the goods purchased by the complainant there is no promise for replacement of the washing machine and the company is not liable for any incidental or consequential damage which appears to be an unfair trade practice on the part of the opposite parties in doing such business, for the reason that this is the case where the washing machine purchased by the complainant from the opposite parties started giving trouble from the date of its installation itself. Further, the opposite parties having received the legal notice got issued by the complainant not only failed to comply the demand made by her but also failed to give any reply even, that itself amounts to an admission on the part of the opposite parties accepting the case of the complaint.

It is the case of the complainant that she purchased the said washing machine for her family with a grate hope that it will more useful in washing their clothes and due to the acts of the opposite parties by not replacing the washing machine with a new one, herself and her family members lost their peace of mind and suffered a lot of mental agony, and further incurred lot of expenditure for the daily washing their clothes with the assistance of washer man.

Under the above circumstances and due to the non-production of sufficient material by the opposite parties that the washing machine became defective due to the complainant’s non-handing of the same properly, we hold that there is deficiency in service on the part of the opposite parties in rendering service to the complainant and so also adopting the unfair trade practice by taking a plea that as per the warranty given to the goodd purchased by the complainant there is no promise for replacement of the washing machine and the company is not liable for any incidental or consequential damage.

POINT No: 2

Under the circumstances and for the reasons stated above, we found that the complainant had clearly established her claim against both the opposite parties, as such, ordering the opposite parties to replace the washing machine with new one will meet the ends of justice besides directing them to pay a reasonable compensation to the complainant for causing mental agony. The points are answered accordingly.

POINT No: 3 :

In view of our finding under Points 1 and 2, the complaint is allowed by giving a reasonable relief.

In the result, the complaint is allowed directing the opposite parties 1 and 2 jointly and severally to replace the defective washing machine in question with a new one of same brand by receiving the defective one from the complainant and also pay to the complainant a sum of Rs.1,000/- (Rupees one thousand only) towards compensation for mental agony suffered by her and Rs.500/-(Rupees five hundred only) towards costs of the complaint within one month from the date of due dispatch of free copy of this order.

**adv.sumit** · 10-10-2009, 02:46 PM

S.Lokanaha Raju,

S/o. Narasa Raju,

Hindu, aged about 57 years,

No.1, Type-III, Telecom Quarters,

Near Head Post Office,

Tirupati – 517 501,

Chittoor District. … Complainant

And

1. The Managing Director,

IFB Industries Limited,

Plot No.IND-5, Sector -1,

East Calcutta Township,

Kolkata – 700 078,

West Bengal.

2. NEXT RETAIL INDIA LTD.,

Rep. by its Proprietor,

Abbanna Colony,

Near Leela Mahal Circle,

Tirumala By-pass Road,

Tirupati. … Opposite parties.

ORDER

This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to pay Rs.52,000/- together with future interest, to replace the washing machine with a new one and to pay the costs of the complaint to the complainant.

2. The averments of the complaint in brief are :- The complainant, on 28.07.2008 purchased a digital 5 kg IFB washing machine manufactured by opposite party No.1 from opposite party No.2, the retailer, for Rs.22,500/-, vide bill No.1087.

The opposite party No.2 also gave warranty for the said washing machine. The complainant utilized the washing machine for 9 months without any problem. Since 05.05.2009 the said washing machine started giving trouble and on 06.05.2009 the complainant complained the same to opposite party No.2. On 07.05.2009 the technician of opposite party No.2 visited the said machine and reported that the water level switch is fault and rectified the same on 10.05.2009. On 11.05.2009 the same problem arose and the complainant made a complaint to opposite party No.2 on 12.05.2009. Inspite of the said complaint, no technician visited the machine and the problem was not rectified. On 13.05.2009 the complainant made a complaint to the call centre, which gave complaint No.3024304.

The complainant also informed Mr.Sreenu, the Service Centre Incharge, Mr.Bharath Kumar, the Service Coordinator and Mr.Ramakrishna, Manager on phone and requested them to rectify the problem, but nobody visited the machine to rectify the problem. On account of prolonged dialogue with opposite party No.2 by the complainant, on 23.05.2009 the technician of opposite party No.2 visited the machine and gave complaint No.3060998. But till today no technician visited the machine and rectified the problem. Due to the deficiency in service and negligent attitude in rectifying the defects of the washing machine by the opposite parties, the complainant is put to severe mental agony. On 25.05.2009 the complainant visited opposite party No.2 and requested him to rectify the problem, but opposite party No.2 gave evasive replies.

The complainant got issued legal notice to the opposite party No.2 on 26.05.2009 calling upon him to rectify the problem / defect in the washing machine by deputing his subordinates / technicians or replace the same with a new one. The opposite party No.2, having acknowledged the notice, failed to rectify the defects in the washing machine. On 23.06.2009 the complainant got issued another notice to opposite parties 1 and 2 calling upon them to rectify the defects in the washing machine. The opposite party No.2 acknowledged the receipt of the notice, but neither complied nor replied. The notice sent to opposite party No.1 has not yet been returned. Hence the complaint.

3. The opposite parties 1 and 2, having received the notice, remained exparte.

4. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A6. Ex.A1 is cash bill for Rs.22,500/- dt:28.07.2008 issued by opposite party No.2 in the name of the complainant. Ex.A2 is the user manual of opposite party No.1 for IFB digital 5 kg. washing machine which contains the warranty issued by opposite party No.2. Ex.A3 is office copy of legal notice dt:26.05.2009 got issued by the complainant to opposite party No.2. Ex.A4 is postal acknowledgement of opposite party No.2 for Ex.A3 notice. Ex.A5 is office copy of legal notice dt:23.06.2009 got issued by the complainant to opposite parties 1 and 2 with postal receipts. Ex.A6 are the postal acknowledgements of opposite parties 1 and 2 for Ex.A5 notice.

5. On behalf of the complainant written arguments were filed and we have heard the oral arguments of counsel for complainant.

6. On the basis of pleadings, the points that arise for determination are:-

1. Whether there is any deficiency in service on the part of opposite parties 1 and 2 towards the complainant?

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

7. Point No.1:- The averments of the complaint and Exs.A1 and A2 establish that the complainant on 28.07.2008 purchased IFB digital 5 kg washing machine manufactured by opposite party No.1 from opposite party No.2, and opposite party No.2 issued cash bill and the user manual for IFB digital 5 kg washing machine containing the warranty. The averments in the complaint and Exs.A3 and A5 legal notices further establish that when the complainant made complaint that the washing machine is giving trouble, the technician of opposite party No.2 visited the machine and rectified the defect in water level switch on 10.05.2009, but on 11.05.2009 the same problem arose and the opposite parties inspite of repeated requests and legal notices failed to rectify the defect in the washing machine. The opposite party No.2, who is the retailer at Tirupati, having received notice from this Forum remained exparte.

The notice sent to opposite party No.1 was not returned. As the acknowledgement was not received within 30 days from the date of issue of notice, it was deemed that the notice was served on opposite party No.1. The complainant purchased the washing machine for Rs.22,500/-. There is no justification on the part of opposite parties 1 and 2 in not getting the defect in the washing machine rectified inspite of two legal notices. Hence, we find that there is deficiency in service on the part of opposite parties 1 and 2 towards the complainant. This point is accordingly answered in favour of the complainant.

8.Point No.2:- In view of our finding on point No.1, the complainant is entitled for replacement of 5 kg IFB washing machine bearing serial No.00811H with a new one. The complainant claimed Rs.52,000/- towards damages and costs of the complaint. There is no basis for claiming such huge amount of Rs.50,000/- towards damages. In our view, it is just and reasonable to award a sum of Rs.2,000/- towards compensation for the mental agony caused to the complainant and Rs.1,500/- towards costs of the complaint. Hence, we find that the complainant is entitled for replacement of 5 kg IFB washing machine bearing serial No.00811H with a new one, Rs.2,000/- towards compensation and Rs.1,500/- towards costs of the complaint. This point is accordingly answered.

9. Point No.3:- In the result, the complaint is allowed in part directing the opposite parties 1 and 2 to replace IFB 5 kg. digital washing machine (model No.008111, serial No.00811H) with a new one, to pay Rs.2,000/- (Rupees two thousand only) towards compensation and to pay Rs.1,500/- (Rupees one thousand five hundred only) towards costs of the complaint to the complainant within six weeks from the date of receipt of copy of order.

**adv.sumit** · 10-22-2009, 02:15 PM

S.Lokanaha Raju,

S/o. Narasa Raju,

Hindu, aged about 57 years,

No.1, Type-III, Telecom Quarters,

Near Head Post Office,

Tirupati – 517 501,

Chittoor District. … Complainant

And

1. The Managing Director,

IFB Industries Limited,

Plot No.IND-5, Sector -1,

East Calcutta Township,

Kolkata – 700 078,

West Bengal.

2. NEXT RETAIL INDIA LTD.,

Rep. by its Proprietor,

Abbanna Colony,

Near Leela Mahal Circle,

Tirumala By-pass Road,

Tirupati. … Opposite parties.

ORDER

This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to pay Rs.52,000/- together with future interest, to replace the washing machine with a new one and to pay the costs of the complaint to the complainant.

2. The averments of the complaint in brief are :- The complainant, on 28.07.2008 purchased a digital 5 kg IFB washing machine manufactured by opposite party No.1 from opposite party No.2, the retailer, for Rs.22,500/-, vide bill No.1087. The opposite party No.2 also gave warranty for the said washing machine. The complainant utilized the washing machine for 9 months without any problem. Since 05.05.2009 the said washing machine started giving trouble and on 06.05.2009 the complainant complained the same to opposite party No.2. On 07.05.2009 the technician of opposite party No.2 visited the said machine and reported that the water level switch is fault and rectified the same on 10.05.2009.

On 11.05.2009 the same problem arose and the complainant made a complaint to opposite party No.2 on 12.05.2009. Inspite of the said complaint, no technician visited the machine and the problem was not rectified. On 13.05.2009 the complainant made a complaint to the call centre, which gave complaint No.3024304.

The complainant also informed Mr.Sreenu, the Service Centre Incharge, Mr.Bharath Kumar, the Service Coordinator and Mr.Ramakrishna, Manager on phone and requested them to rectify the problem, but nobody visited the machine to rectify the problem. On account of prolonged dialogue with opposite party No.2 by the complainant, on 23.05.2009 the technician of opposite party No.2 visited the machine and gave complaint No.3060998. But till today no technician visited the machine and rectified the problem. Due to the deficiency in service and negligent attitude in rectifying the defects of the washing machine by the opposite parties, the complainant is put to severe mental agony. On 25.05.2009 the complainant visited opposite party No.2 and requested him to rectify the problem, but opposite party No.2 gave evasive replies.

The complainant got issued legal notice to the opposite party No.2 on 26.05.2009 calling upon him to rectify the problem / defect in the washing machine by deputing his subordinates / technicians or replace the same with a new one. The opposite party No.2, having acknowledged the notice, failed to rectify the defects in the washing machine. On 23.06.2009 the complainant got issued another notice to opposite parties 1 and 2 calling upon them to rectify the defects in the washing machine. The opposite party No.2 acknowledged the receipt of the notice, but neither complied nor replied. The notice sent to opposite party No.1 has not yet been returned. Hence the complaint.

3. The opposite parties 1 and 2, having received the notice, remained exparte.

4. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A6. Ex.A1 is cash bill for Rs.22,500/- dt:28.07.2008 issued by opposite party No.2 in the name of the complainant. Ex.A2 is the user manual of opposite party No.1 for IFB digital 5 kg. washing machine which contains the warranty issued by opposite party No.2. Ex.A3 is office copy of legal notice dt:26.05.2009 got issued by the complainant to opposite party No.2. Ex.A4 is postal acknowledgement of opposite party No.2 for Ex.A3 notice. Ex.A5 is office copy of legal notice dt:23.06.2009 got issued by the complainant to opposite parties 1 and 2 with postal receipts. Ex.A6 are the postal acknowledgements of opposite parties 1 and 2 for Ex.A5 notice.

5. On behalf of the complainant written arguments were filed and we have heard the oral arguments of counsel for complainant.

6. On the basis of pleadings, the points that arise for determination are:-

1. Whether there is any deficiency in service on the part of opposite parties 1 and 2 towards the complainant?

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

7. Point No.1:- The averments of the complaint and Exs.A1 and A2 establish that the complainant on 28.07.2008 purchased IFB digital 5 kg washing machine manufactured by opposite party No.1 from opposite party No.2, and opposite party No.2 issued cash bill and the user manual for IFB digital 5 kg washing machine containing the warranty.

The averments in the complaint and Exs.A3 and A5 legal notices further establish that when the complainant made complaint that the washing machine is giving trouble, the technician of opposite party No.2 visited the machine and rectified the defect in water level switch on 10.05.2009, but on 11.05.2009 the same problem arose and the opposite parties inspite of repeated requests and legal notices failed to rectify the defect in the washing machine. The opposite party No.2, who is the retailer at Tirupati, having received notice from this Forum remained exparte. The notice sent to opposite party No.1 was not returned.

As the acknowledgement was not received within 30 days from the date of issue of notice, it was deemed that the notice was served on opposite party No.1. The complainant purchased the washing machine for Rs.22,500/-. There is no justification on the part of opposite parties 1 and 2 in not getting the defect in the washing machine rectified inspite of two legal notices. Hence, we find that there is deficiency in service on the part of opposite parties 1 and 2 towards the complainant. This point is accordingly answered in favour of the complainant.

8.Point No.2:- In view of our finding on point No.1, the complainant is entitled for replacement of 5 kg IFB washing machine bearing serial No.00811H with a new one. The complainant claimed Rs.52,000/- towards damages and costs of the complaint. There is no basis for claiming such huge amount of Rs.50,000/- towards damages.

In our view, it is just and reasonable to award a sum of Rs.2,000/- towards compensation for the mental agony caused to the complainant and Rs.1,500/- towards costs of the complaint. Hence, we find that the complainant is entitled for replacement of 5 kg IFB washing machine bearing serial No.00811H with a new one, Rs.2,000/- towards compensation and Rs.1,500/- towards costs of the complaint. This point is accordingly answered.

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