BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.16/2012

DATED THIS THE 26^th AUGUST 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                Sri.Lokesh.K.S,

                                                S/o. Shivakumar Aradhya,

                                                Aged about 49 years,

                                                R/at No.635, 3^rd Cross,

                                                1^st C Main, KG Layout,

                                                Banashankari III Stage,

                                                III Phase, III Block,

                                                Bangalore - 85

V/s

Opposite parties: -                 

1.     M/s. IFB Industries Limited,

(Home Appliances Division),

No.17, Vishweshwaraiah,

Industrial Estate, Off. White Field

Road, Mahadevapura Post,

Bangalore-48,

Reptd by its Manager,

2.     M/s. IFB Industries Limited,

Having its Franchisee at

No.115/1, SK Plaza, Vivekananda Nagar,

Kathriguppe Main Road,

Banashankari III stage,

Bangalore – 85

Reptd by its representative

Sr.Ramu 

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to refund Rs.7,374=00 alongwith interest at 24% from 2009 to till the date of realization, to pay Rs.18,000=00 towards deficiency of service, and to pay Rs.25,000=00 towards compensation and such other reliefs as deemed fit, in the interest of justice and equity.   

2. The brief facts of the complaint can be stated as under.

The complainant had purchased the IFB washing machine having model no.T2400, Sl.no.12057 and ever since from the date of purchase, the said washing machine was covered under guarantee and warranty and when the guarantee was nearing to expire, the representatives of the 1^st OP had induced the complainant to take annual maintenance contract for a specific period or term thereby explaining the various advantages, and accordingly the complainant agreed for the same and entered into annual maintenance contract with the 1^st OP, and invoice cum receipt was issued to the complainant vide no.2639 thereby certifying that the contract shall commence from 5-6-2009 to 4-6-2011 and after expiry thereof the same was renewed and this annual maintenance contract was taken for the first three years. At no point of time there was any trouble. Such being the factual position, during the existence of the annual maintenance contract period, the 1^st OP called upon the complainant expressing that if advance payment is made to AMC contract for ensuring year, he would give discount, and upon hearing the same, the complainant renewed the said contractor for a period commencing from 23-6-2012 to 23-6-2013 by paying a sum of Rs.2,300=00. Such being the factual position in the month of July 2011 the washing machine of complainant gave mechanical trouble and the timer of the said washing machine was not working properly, immediately the complainant had reported the problem to the 1^st OP, and the representative of the OP no.2 claiming to be franchisee of the 1^st OP after lapse of more than one and half months approached the complainant and exchanged the timer of the washing machine. Ever since from the date of changing the timer, the washing machine started malfunctioning and by virtue of which the complainant and his family members were unable to use the washing machine due to mechanical defect and the complainant has reported the defect to the OPs no.1 and 2, but they have failed to rectify the defect. By virtue of the mechanical defect, the complainant and his family members are unable to use the washing machine since July 2011 and the very purpose of obtaining annual maintenance contract was not fulfilled and they are forced to wash their clothes by engaging a maid by paying a sum of Rs.3,000=00 per month and by virtue of the act of the OPs, the complainant has suffered both mentally and physically and has been continuously contacting the OPs over phone, but he has not yielded any fruitful results, so there is deficiency in service on the part of the OPs. So, the complainant has come up with the present complaint.

   3. After service of the notice, the OP no.1 has appeared through its counsel and filed version, contending interalia as under:

The complaint of the complainant is not maintainable either in law or on facts and it is liable to be dismissed. The complainant has suppressed material facts before this forum and has not approached this forum with clean hands, so the complainant is not entitled for any relief. It is true that, the complainant has purchased the said washing machine; however, it is incorrect on the part of the complainant to contend that the OP induced the complainant to take annual maintenance contract. On the other hand, it was the complainant who was keen to take AMC from the OPs. It is incorrect to state that, the complainant was offered discount for taking AMC, all this is a fabricated and concocted story of the complainant. As admitted by the complainant, the washing machine has been used by the complainant for more than three years without any problem and the AMC utilized by the complainant for three years. However the averment of the complaint that, the machine stared to give trouble in the month of July 2011 and the representatives of the company exchanged the timer after 1 ½ months and after changing the timer, the washing machine started mal functioning are all false and so it is denied totally and the complainant is put to strict proof of the same. When the timer was replaced the complainant reportedly expressed satisfaction about the working of the machine. Later when the complainant again complained to the OP, the technician found that the complainant had tampered with the timer himself and when this fact was brought to the notice of the complainant, he started abusing the technician and he did not permit the technician to attend to the machine, so the complainant cannot now turn around and make allegations against the OP alleging that the OP has failed to rectify the defect for reasons best known to him. These allegations are made by the complainant only to cause prejudice against this OPs and to gain the sympathy of this forum and there is no deficiency of service on the part of the OPs. The AMC was obtained by the complainant by paying a sum of Rs.2537=00 and now the very fact that the complainant is seeking a sum of Rs.25,000=00 as compensation from the OP shows the ulterior motive that the complaint is filed to make windfall profits. As admitted by the complainant, the washing machine has been used by the complainant for more than three years without any problem and the AMC was utilized by the complainant for three years, so the complainant cannot seek for refund of Rs.7,374=00 for the previous AMC. Since, the contract was only a maintenance contract and not a commercial contract so the complainant cannot seek any interest on that much less 24% as sought by the complainant. There is no cause of action to file this complaint and the claim of the complainant is neither bonafide nor reasonable. The complaint has been filed with ulterior motives. The complainant is not entitled to claim any relief. So, it is prayed to dismiss the complaint with cost, in the interest of justice and equity.

4. So from the averments of the complaint of the complainant and objection of the OP no.1, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs in not performing the obligation as per the contract agreement?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

point no.1, the complainant is not entitled 

to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced three copies of documents. On the other hand, one Santhosh, who being the Senior Executive working in the 1^st OP office has filed his affidavit and produced no documents. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 

7. One Lokesh, who being the complainant has stated in his affidavit that, he has purchased the IFB washing machine having model no.T2400, Sl.no.12057 and ever since from the date of purchase, the said washing machine was covered under guarantee and warranty and when the guarantee was nearing to expire, the representatives of the 1^st OP has called upon and induced the complainant to take annual maintenance contract for a specific period or term thereby explaining the various advantages, and on the approach so made by the representative of the 1^st OP, he agreed for the same and entered into annual maintenance contract with the 1^st OP, and accordingly invoice cum receipt was issued to him, the contract shall commence from 5-6-2009 to 4-6-2011 and after expiry thereof the same was renewed from 5-6-2010 to 4-6-2011 and this annual maintenance contract was taken for the first three years and at no point of time there was any trouble, and such being the factual position, during the existence of the annual maintenance contract period, the 1^st OP called upon him expressing that if advance payment is made to AMC contract for ensuring year, he would give discount, and accordingly he renewed the said contract for a period from 23-6-2012 to 23-6-2013 by paying a sum of Rs.2,300=00. Such being the factual position in the month of July 2011 the washing machine gave mechanical trouble and the timer of the said washing machine was not working properly, immediately he reported the problem to the 1^st OP and the representative of the OP no.2. After lapse of more than one and half months approached him and exchanged the timer of the washing machine. Ever since from the date of changing the timer, the washing machine started malfunctioning and due to that, he and his family members were unable to use the washing machine and the very purpose of obtaining annual maintenance contract was not fulfilled, and he and his family members  were forced to wash their clothes by engaging a maid by paying a sum of Rs.3,000=00 per month and by virtue of the act of the OPs, he has suffered both mentally and physically and has been continuously contacting the OPs over phone, but he has not yielded any fruitful results, so there is deficiency in service on the part of the OPs. The OPs have failed to perform the obligation caste upon him and to repair the washing machine within the AMC period and caused deficiency in service and played the fraud. On account of it, he and his family members have to suffer hardship and lot of inconvenience, and he has suffered mentally, physically and financially resulting in much loss and damage which is estimated of Rs.25,000=00. The OPs have adopted unfair trade practice, so the OPs are liable for the relief as prayed in the complaint, hence the present complaint.

8. The complainant has produced document no.1 being the AMC/EXT WTY dated 5-6-2010 issued by the technician of the 1^st OP and the said document was signed by the complainant and technician, and the complainant has paid Rs.2,537=00 towards AMC period from 5-6-2009 to 4-6-2011. Document no.2 is the copy of annual maintenance contract form dated 5-6-2010 issued by the OP incorporating terms and conditions and it is signed by the complainant and employee of OP. Document no.3 is the copy of invoice cum receipt issued by the 1^st OP in the name of complainant for the period from 23-6-2012 to 23-6-2013 by collecting Rs.2,300=00 from the complainant which was signed by both the complainant and OP.

9. By a careful reading of the oral and documentary evidence of the complainant as mentioned above, it is transpired that, the complainant and OPs have entered into an Annual Maintenance Contract from 5-6-2010 to 4-6-2011, and 23-6-2012 to 23-6-2013 in respect of washing machine of the complainant and in the month of July 2011, the washing machine of the complainant had mechanical trouble and the timer of the said washing machine was not working properly and the complainant has reported the said problem to the 1^st OP and the employee of the 2^nd OP came and changed the timer of the washing machine as per the contract agreement. Further, it is a specific case of the complainant that, after changing the timer, the washing machine started malfunctioning and due to that the complainant and his family members were unable to use the washing machine and though he reported the defect to the OPs no.1 and 2, the OPs have failed to rectify the defect. But it is pertinent note that, in order to demonstrate before the forum that the complainant has reported the defect to the OPs after changing the timer, but the OPs did not rectify the defects, no documentary evidence is produced by the complainant. Three documents produced by the complainant go to show that there was annual maintenance contract between the complainant and OPs upto 23-6-2013. The said documents do not throw any light on the point of intimating the OP in respect of defects in the washing machine and conduct of the OPs in not attending the problem of complainant. Atleast the complainant ought to have issued either a letter or notice to the OPs calling upon them to attend the particular defect in the washing machine. No such sincere efforts were made by the complainant, for the reasons best known to him. Besides, before filing the present complaint, the complainant should have got issued a legal notice or written a letter to the OPs calling upon them to attend the particular defects in the washing machine as per the terms and conditions of AMC. No such efforts were made by the complainant before filing the present complaint. In fact, the complainant has miserably failed to show before the forum with particular documentary evidence that, his claim has been repudiated by the OPs. Unless and until, the claim of the complainant is repudiated or rejected by the OPs, the complainant is not having any right to file the present complaint without any specific cause of action.

10. At this stage, it is relevant to have a cursory glance at the material evidence of the OPs. One Santhosh s/o. Doreswamy, Senior Service Executive working in the 1^st OP office has stated in his affidavit that, it is true that, the complainant has purchased the said washing machine; however, it is incorrect to contend that the OP induced the complainant to take annual maintenance contract, and whatever stated in the complaint about annual maintenance contract, making allegations against the OPs is incorrect. As admitted by the complainant, the washing machine has been used by the complainant for more than three years without any problem and the AMC was utilized by the complainant for three years now. When the timer was replaced the complainant reportedly expressed satisfaction about the working of the machine. Later when the complainant again complained to the OP that, the technician found that the complainant has tampered with the timer himself and when this fact was brought to the notice of the complainant, he started abusing the technician and thereafter he did not permit the technician to attend to the machine. The allegation that the complainant is spending Rs.3,000=00 per month for washing clothes is again a concocted story  to claim higher compensation, and there is no deficiency of service on the part of the OPs. So, the complainant cannot seek for refund of Rs.7,374=00 for the previous AMC, since the contract was only a maintenance contract and not a commercial contract, so the complainant cannot seek any interest and compensation, so the complaint be dismissed with cost.

11. So taking the oral and documentary evidence of the complainant and compare the same with the material evidence of the OPs, it is vivid and clear that, the OPs have attended the washing machine as and when the complainant has made a complaint and replaced the timer as per the terms and conditions of the contract. But, unfortunately, the complainant has miserably failed to establish with documentary evidence that, after replacement of timer, he started getting particular problem in the washing machine and inspite of the complaint, the OPs did not rectify the same as per the terms and conditions of the contract. Having failed to prove the negligence and deficiency of service on the part of the OPs in not attending the problem of the washing machine as per the terms and conditions of the agreement, it is inequitable and unjust to hold on the solitary testimony of the complainant that, the OPs are negligent and there is deficiency of service on the part of the OPs. The material placed by the complainant in this regard is lacking in its credibility, and as such we are of the view that, the material evidence of the OPs is more believable trustworthy and acted upon than the oral and documentary evidence of the complainant. So, in view of the discussion made hitherto, we are of the considered opinion that, the complainant who comes to the forum seeking relief under section 12 of the Consumer Protection Act has miserably failed to prove with clear cogent and consistent material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in not attending the problem of his washing machine in view of the terms and conditions of the contract, and according, we answer this point in a negative.            

          12. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is hereby dismissed. No costs.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 26^th day of August 2013).

MEMBER                                 PRESIDENT