SMT. RAVI SUSHA  : PRESIDENT

   Complainant  filed this complaint  U/S 12 of the Consumer Protection Act 1986, against opposite parties seeking to get an order directing to refund the value of washing machine Rs.19990/- and Rs.1,00,000/- towards compensation for mental agony  caused to the  complainant and his family  alleging deficiency in service on the part of  Ops.

    Facts of the case are that on 27/6/2014 complainant purchased from 2^nd OP a fully automatic washing machine of ONIDA company manufactured by 3^rd OP for a sum of Rs.19990/-.  1^st OP is the authorized service centre of 3^rd OP, 4^th OP is the authorized service  company of  3^rd OP in Kerala.  Complainant herein alleged that the washing  machine were defective from the very beginning within one month and on informing 2^nd OP they exchanged with a new one of same company.  The second one delivered by 2^nd OP also became defective within days.  Then complainant contacted 2^nd OP personally and  requested to deliver a new washing machine of deferent company.  But 2^nd OP instead of giving washing machine of  another company, given another new washing machine of ONIDA company itself.  Complainant contended that he used the said product for 1 ½  years from the date of purchase.  After that the said produce also became defective and he made complaint to the 2^nd OP on 16/4/2016.  Thus the technician of 1^st OP inspected the  machine and informed that the board of the  product  became damaged.  Complainant made several complaints to the Ops 1&2, they informed the non availability of spare parts nothing had done for repairing it.  Complainant alleged that 2^nd OP had delivered  only low quality washing  machine to him, so all the  three machines became damaged.  Hence he filed this complaint for getting refund of the amount paid by him ie Rs.19990/- with compensation of Rs.1,00,000/- and cost of the proceedings.

    Notices were served to the Ops 1&2.  Both Ops filed their written version .  As per the  contention  in the version of  1^st OP, complainant taken steps to implead manufacturer of the disputed product and their authorized service  company in Kerala.  On issuing notices, both parties appeared  through learned counsel of 1^st OP and filed  joint written version.  1^st OP contested the case and submitted  version denied the entire allegations of the complainant against them and stated that there is no deficiency  on their  part. 1^st OP stated that nothing to do with the purchase  and exchange  and also of the quality of the washing machine and admits  that his technician had gone to the residence of the complainant and checked the machine and told that the board of the machine is damaged.  He could not repair the machine due the  non availability of the spare parts. This OP got the spare parts after about two months and immediately contacted the customer, but he said that the matter was in dispute and therefore he refused to accept the offer .  1^st OP further submits that  he is ready to repair the machine without any payment and is ready to extend  warranty for breakdown period.  1^st OP is only a service contractor of the service company is to give spare parts.  1^st Op is taking up works of the company on call basis.  All the spare parts will be provided by the service company.  The contract between  1^st OP and the service company is over and there is no  any relation with the company since a few months.  1^st Op submits that he has not  committed any unfair trade practice and  there is not  any commission or omission on his part and no deficiency of service  on their part.  Hence prayed for the dismissal of complaint against  1^st OP.   

   2^nd OP the authorized dealer of 3^rd OP stated that the averment of complainant about purchase of fully automatic washing machine of ONIDA company by him from their shop, then within on e month it was replaced with a new one and that also became defective and again second one replaced with another one and that produce also reported as defective  are admitted.  According to 2^nd OP, the product was selected  and purchased by the complainant himself.  2^nd OP further submitted that on registering  complaint they informed the matter to 1^st OP and directed to  contact  1^st OP.  Further submitted that 1^st OP was ready to replace the  defective parts of washing machine, but complainant was not willing for doing the repair work on the product instead of  that he demanded to replace the washing machine with a new one.  According to 2^nd OP, if the product has manufacturing defect, the manufacturing company is responsible , there is no deficiency in service on their part and prayed for the dismissal of complaint against them.

   Ops 3&4 filed separate  version.  Contentions of Ops 3&4 are that they are not aware of the  dealings of the complainant with  2^nd OP and do not know what transpired  between the complainant and 2^nd OP and they could  realize that the demand of the complainant is beyond the warranty period and  his demand  cannot be accepted . The product can be  repaired by the service centre only on payment of service charge.  If any spare parts is required should be changed on payment only.  Ii is submitted that an expert’s evidence is required and the complainant is put to strict proof of the same in support of  his case.  The complainant has failed to make any case of deficiency in service or unfair trade practice against  them.  Hence prayed for dismissal of complaint.

    Complainant filed his affidavit to prove his case with  document.  The bill dated 27/6/2014 marked as Ext.A1 and  user’s manual with warranty card as Ext.A2.  He was cross-examined for  Ops 1 to 4.  Then service  in charge of 1^st OP has filed his chief affidavit and was examined as DW1, Sales executive of  2^nd OP filed his chief affidavit and was examined as DW2 and  area service manager of 3^rd OP filed his chief affidavit and was examined as DW3.  DWs 1 to 3  were cross examined for complainant.  After that learned counsel for complainant  filed written argument note and the learned counsel of 2^nd OP placed oral  submissions before us.

     The question to be decided in this case is whether there is any deficiency in service on the part of any of the Ops and  whether complainant is entitled to get refund of the value of the  washing machine and compensation?

   Here there is no dispute that on 27/6/2014 complainant had purchased ONIDA W/M Hydro plus washing machine manufactured by 3^rd OP from 2^nd OP for a consideration  of Rs.19990/-.  It is  also an admitted fact that the said  washing machine was replaced with another new one and again replaced  with another new product of the same company and 1^st OP  authorized service centre on getting complaint inspected the machine and found that the machine in dispute also have defect in its Board.

   It is also an undisputed fact that all the machine including the present one became defective within the warranty period.  All Ops categorically stated that as per the warranty  terms and conditions, the purchaser cannot demand replace of the whole product, instead of  that repair or replacement of defective parts would be  done with free of cost.  So according to Ops this complainant can also get repair or replacement of defective parts with new parts free of cost.  Complainant contended that though the present product was a 3^rd  one he was registered his complaint at 2^nd OP , and the technician from 1^st OP visited his house and inspected the product and  declared  the board of the  product became damaged, but no steps were taken from the side of Ops 1&2 to repair the product.  According to complainant, they were ready  to get it repaired.  Complainant alleged that he made several phone calls and contacted directly to Ops 1&2 but nobody  from Ops 1&2 provided service to him.  Here Ops contended that the service technician of  1^st OP  though  noticed that the board of the machine is damaged, he  could not repair the machine due to non-availability of the spare parts.  Further 1^st OP contended that  he got the spare parts after about two months and immediately contacted the customer.  But complainant said that the matter was in dispute and  therefore he refused to accept the  offer of the Ops.  It is further submitted that he is ready to repair the machine without any payment and is ready to extend warranty for breakdown period..  Here though 1^st OP submitted the  above said facts, no piece of evidence furnished before this commission to substantiate their contention.  1^st OP could have communicate in writing to the customer about their inability to repair the product immediately due to non availability of spare parts.  There is no  evidence available before us to believe the contention of 1^st OP that he had taken steps immediately to Ops 3&4 for getting the spare parts and also informed the complainant after getting the spare parts.  Hence the said contention of 1^st OP cannot be  believed.  Complainant submitted  that as complainant and his wife are government employees, they suffered mental agony due to non working of the washing machine.  Ops 3&4 contended that the machine became defective due to misuse of it by the complainant and his family members.  But for that also, no evidence was brought before us by inspecting the machine with an expert and produced report by any of the Ops.

    Here complainant had filed the warranty card, so there was no dispute as far as the warranty of the goods are concerned and  the defects happened within the warranty  period.  Ops also raised  a contention that there was no expert evidence to ascertain that the product has manufacturing  defect.

   But the fact that the product became non-working within a span of one month clearly reveals  that there was a manufacturing defect in the washing machine sold by 2^nd OP, manufactured by  3^rd OP and were declared defective  from replacing it  with a new one and the present product  has also having manufacturing defect from the declaration  by the 1^st OP.

     Hence from the facts itself , it is  clear that  the newly purchased washing machine with 1-2 months of its purchase became defective itself amounts to manufacturing defect and  need not be proved through expert opinion.

    Another contention raised by 2^nd OP is  that as they are the dealers of 3^rd OP ONIDA company.  So they are not responsible for the defect happened on the product of 3^rd OP.  Here it is a fact that 2^nd OP is an independent  dealer and not an agent of the manufacturer of the washing machine in question.  Hence he cannot wash off his hands after making a sale and shift his burden to the manufacturer nor can  he insist that the manufacturer be added as a party to the proceedings.  A consumer is primarily concerned with the person from  whom he buys the goods, as privity of contract is between  them and not with the manufacturer.  Hence dealer should  take care of the complainant’s complaint and can take up the matter with the manufacturer for rectifying the defect.

   In view of the matter discussed above, there is deficiency in service on the part of all opposite parties.  Considering the facts and circumstances of this case, it is  better to order for the refund of the amount of the washing machine because complainant  had lost faith in ONIDA company’s product.

   In the result complaint is allowed in part.  Opposite parties 1 to 4 are directed to repay Rs.19990/- to the complainant.  Opposite parties are further directed to pay Rs.10,000/- as compensation for the mental agony sustained  to the complainant and his family.  Opposite parties 1 to 4 are jointly and severally liable to  comply the order within  one month  from the date of receipt of this order.  Failing which Rs.19990/-  carries  interest   @9% per annum from the  date of the order till realization of the amount.  As the washing machine in dispute is with the complainant, it has to be returned to 2^nd OP on compliance of the order.  Complainant can realize the awarded amount by filing execution application against opposite parties as per  provisions in Consumer Protection Act 2019.

Exts:

A1-Bill-Dtd27/6/2014

A2- User manual with  warranty card   

PW1-Muraleesh.P.P.- complainant

DW1-Arun Chandran-1^st OP

DW2-Akhilesh.K.V- 2^nd OP

DW3- C.Sunilkumar-3^rd OP

Sd/                                                             Sd/                                        Sd/

PRESIDENT                                             MEMBER                           MEMBER

Ravi Susha                                       Molykutty Mathew.                      Sajeesh K.P

eva           

                                                                      /Forwarded by Order/

                                                 ASSISTANT REGISTRAR