SMT. RAVI SUSHA  : PRESIDENT

      This complaint has been filed by the  complainant U/S 35 of Consumer Protection Act 2019,for getting an order directing  opposite parties to refund  of cost of the product purchased  together with compensation for  mental agony, alleged  deficiency in service on the part of OPs.

 Facts of the case are that  on 5/5/2019 complainant purchased from the 1^st OP, one Fridge manufactured by 2^nd OP for a sum of Rs.26490/-.  Complainant alleged that there was no complaint on the fridge at the  beginning  time, but on sudden, the fridge became defective of no cooling complaint and the items keeping it shows  damaged.  It is alleged that on 12/10/2020 she made complaint to 2^nd OP.  The technician of 2^nd OP came to her residence and checked the product.  The technician informed that the inverter PCB in the fridge became damaged and she has to pay  its value Rs.4088/- for replacing the damaged part.  Though she agree for  the said payment, the OPs did not repaired  the produce inspite of several calls to the OPs.  At last after several effort made from the side of complainant, on 9/11/2020, the  technician, replaced the defective  part of  the fridge.  But the defect in the fridge had not rectified and the defective condition of the product being continued.  Since  positive result was not obtained from the side of OPs, she filed this complaint for refund of cost of fridge together with compensation for mental agony and harassment amounting Rs.31490/-.

   Notice was served to the OPs.  1^st OP filed version stating that 1^st OP is not a necessary party and the manufacturing company of the product  and the authorized  service centre are the necessary party in this case.  As per the contentions in the written version of 1^st OP, complainant had impleaded OPs 2&3 as per IA No.281/2021.  1^st OP further submitted that there is no deficiency  on their part and as soon as they received the call from the complainant, they attended the same and they  went to the residence of the complainant and defect in the fridge was rectified.  According to 1^st OP, they are only seller of the product, and the duty to rectify the defect was vested  on the manufacturer of the product through  their authorized  service centre.  Hence prayed for the dismissal of the complaint against 1^st OP.

   2^nd OP filed separate version contended that 1^st OP as a responsible  seller  had duly responded upon the  complainant ‘s first communication  about the alleged grievance and registered the same, so that  its service team then may immediately take up the resolution and that the  service technician of  1^st OP duly visited the complainant’s residence to check the facts and diagnosed the issue of PCB and replaced the same.  Based on the date of purchase  of the product the technician  realized that the product has not only survived the mutually agreed warranty period by over five months but also identified that the product suffers from no other malfunction than the aforesaid blockage.  However in order to carry out necessary repair he suggested to shift the product to the  service centre and prescribed  an estimate of possible charges that the complainant would have to bear.  It is further submitted that  had there been an inherent defect in their product as regards its quality, it would not have properly functioned for over 17 months from its purchase date.  After one months ie on 16/11/2020 complainant registered  complaint for no cooling in refrigerator and on the same day our technician’s had visited the complainant’s house and found problem with the compressor.  This OP ready to repair the compressor or FOC basis however merely asked for gas charging and drier fitting charges however the complainant refused to pay the charges.2^nd OP further submitted that  within only a week to repair the complainant’s product  free of  any cost s  only to secure the complainant’s satisfaction, the complainant denied to repair the product and demanded refund for the  said  product. Therefore the OPs prays for  dismissal  of the complaint  with cost.

   While pending of this case  complainant has taken steps to appoint an expert commissioner to inspect the product in this case and to file report.  As per her application, Mr. Subin K.P was appointed as Expert commissioner and  after sending notices to complainant  as well as OPs 1 to 3 done, inspection  of the fridge in subject and filed  a detailed  report.

   Complainant has filed her chief affidavit and the document, the purchase bill, instruction manual and  purchase bill of new fridge.  She has been examined as PW1 and marked the documents as Exts.A1 to A3 and Ext.C1.  The sales executive of 1^st OP filed his chief affidavit and was examined as DW1.  After that the learned counsel of complainant filed argument note.  OPs 2&3 have not contested the case.

   The undisputed facts in this case is  that the purchase of the fridge in dispute, manufactured by 2^nd OP, from the 1^st OP and 1^st OP is the dealer of  2^nd OP.  Through Ext.A1 complainant proved the value of the fridge as Rs.26,499/- and the date of  purchase as 5/5/2019.  Further Ext.C1 is the authenticated document prepared by an expert commissioner.  Expert commissioner in his detailed inspection report has stated that ” the

refrigerator mentioned in the complaint was out of order.  When the AC power supply to the  refrigerator was switched ON the bulb in the lower cabin lights up , but no cooling effect had been felt in the lower and upper cabin even after  certain period of time.  The compressor of the  fridge is found to be not working.   The inverter PCB of the fridge  was replaced by the company technician during November 2020.  Hence it is understood that the reason for  the non operation of the fridge despite replacing  the inverter PCB is due to the compressor failure/ refrigerant  leakage or both.  The company has been built the condenser of this  fridge as an inbuilt body without exposing  it outside for consider the beauty of the same.  While refrigerant leakage  through the condenser is repaired at site, another condenser has to be additionally fitted outside the body of the refrigerator which will affect the overall appearance of the  fridge significantly. While the compressor is replaced or the condenser is repaired, the condenser tube needs to be cut and re-joined, usually done on site by a process called Manual Torch Brazing .  This brazing process is unlikely to have the same level of perfection as in manufacturing industries with automatic Brazing Machine”.

   From the report it is revealed that the product in question is found out of order and no cooling effect had been felt in the lower and upper cabin even after certain period of time.  Further compressor of the refrigerator is found to be not working.  Thus through Exts.A1 to A3 and through Ext.C1 report complainant proved her case.

   Here 1^st OP had  tried to  shift their liability to 2^nd OP as 2^nd OP is the manufacturer of the product.  1^st OP admitted the fact of purchase of the fridge.  1^st OP pleaded that they are ready to rectify the defect through the authorized service centre of the manufacturer, but the complainant was not ready. From the pleading it is realized that once the defective part was replaced, but the defect became repeated.  So we cannot blame the complainant to take  an attitude to  refund the value of the product.

   It is to be noted that 1^st OP herein is  an independent dealer  and not an agent of the manufacturer of the fridge in question.  Hence, he cannot wash off his hands after making a sale and  shift his burden  to the manufacturer.  A customer is primarily concerned with the person from whom he /she buys the goods, as privity of contract  is between them and not with the manufacturer.  Hence the liability of  1^st OP dealer for sale of defective goods to the customer is beyond question.  Here from Ext.C1, the fridge has  defect in its  manufacturing.  So both OPs 1&2 are liable to redress the grievance of complainant and compensate  for the mental agony and hardship caused to her.  Since even now  the product is defective and as she purchased a new fridge(Ext.A3)  refund of the cost of the fridge is useful for the complainant.

   In the result, complaint is allowed, opposite parties 1&2 are directed to refund Rs.26940/- and Rs.5000/- towards compensation  to the complainant.  Opposite parties 1&2 are further directed to pay Rs.2000/- to the complainant towards the expense met by the complainant to the expert commissioner.  Opposite parties 1&2 shall comply the order within one month from the date of receipt of  the certified copy of this order.  Failing which the awarded amount  carries interest at the rate of 9% per annum from the date of order till realization.  Opposite parties 1&2 are jointly and severally  liable to comply the order.  Complainant is at liberty to execute the order as per the provision of Consumer Protection Act 2019. 

Exts:

A1- Bill dtd.5/5/2019

A2-refrigerator operating instruction manual

A3-Bill dtd4//11/2022

C1-Expert report

PW1- Neethu.M.P-complainant.

DW1-Jabir.K.P-witnes of OP

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR