D.O.F : 02/03/2023
D.O.O : 06/09/2024
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.66/2023
Dated this, the 6th day of September 2024
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Kamarudeen T
Kadavath New House
Kaithakad P O
Cheruvathur (Via)
Kasaragod (Dis)
Kerala – 671313. : Complainant
And
- The Manager
EKZON Solutions
Kottaram building
East Nadakkav
Kozhikode – 673011.
- The Manager
Refrigeration Pvt. Ltd
Office premises
501,502,503,504,505
5th Floor, Ascot center
Sahar Road
Next to Hotel Hilton
Andheri (East)
Mumbai -400099.
(Adv: Giriprasad P, for OP 1 & 2) : Opposite Parties
ORDER
SMT.BEENA.K.G : MEMBER
The complainant is the proprietor of KIFI Agencies Albaik Feasto Express. On 26/4/2022, the complainant purchased a freezer from opposite party for Rs. 36,500/- for his firm. After 10 months of usage the freezer became defective on 13/02/2023 and he registered a complaint in the company. On 16/02/2023, the company’s mechanic came and examined the complaint of the freezer. While opening the freezer, its parts are seen rustled. The mechanic informed that the damage of the freezer may be due to the leakage of the gas. At the time of purchase of the freezer, opposite party assured that it is a new product and offered 2 years warranty. Only after 10 months of purchase, the parts are rustled due to leakage of gas constrained him to believe that the product is old and opposite party cheated him. Even though the complainant contacted the company to resolve his grievance, till now the defect is not cured nor the freezer is replaced. The complainant alleging deficiency in service on the part of opposite party as he is unable to conduct the business without the freezer. Due to the deficiency in service on the part of opposite party, the complainant suffered huge loss and mental agony. Hence the complainant is seeking compensation of Rs. 10,00,000/- from opposite party.
The opposite party No.1 filed version stating that the complaint is false, frivolous, vexatious and not maintainable in law. According to opposite party No.1, the complaint ought to have been filed in the name of the firm. The complainant should have obtained authorization to represent KIFI Agencies who is the purchaser of the unit and the complainant has no locus standi to file this complaint or to represent the firm without valid authorization. Another contention raised by opposite party No.1 that the machine unit is used for commercial purpose for profitable business and hence the complainant is not a consumer within the purview of Section 7 (i) of the Consumer Protection Act 2019. The next contention raised by opposite party No.1 is that the averment in the complaint of the effect that the rusting of the parts of the unit is due to leakage of gas and thereby resulted in the damage of the unit, the opposite party sold old unit and thus deceived the customer and opposite parties did not provide another freezer and he is entitled for compensation etc. are false and denied herewith. The opposite party admitted that the customer approached them stating that he is a partner of a firm by name and style as KIFI Agencies at Kanhangad and they have obtained the franchise at Kanhangad for M/S Albaik Feasto Express and demanded a commercial freezer for keeping frozen goods of M/S Albaik. Since the opposite party is the regular supplier of small and large machine unit to M/S Albaik for different places in Kerala, they accepted the order from KIFI Agencies Kanhangad. KIFI Agencis purchased the model EWHD580H-HC Chest Freezer H2T Convertible Commercial with serial No. 30084220300357 on 26/04/2022 with invoice No. 67 from this opposite party. The manufacturer (opposite party No.2) delivered the model number EWHD580H-HC Chest Freezer H2T Convertible Commercial to the dealer (opposite party No.1) on 22/03/2022. The manufacturing period of the above unit was in March 2022. There was no delay in selling the unit to the customer from the side of opposite party. The sold unit have warranty of 4 years. The customer had contacted opposite party No. 2 directly and they have never contacted opposite party No. 1 at any point of time raising any deficiency of service/unfair trade practice etc. The opposite party further alleges that they are the leading dealers in South India having good track record and good customer relationship and in order to pressurize this opposite party No.2 to settle the dispute the complainant purposefully made this opposite party as a party to the complaint. After the initial payment the complainant obtained the delivery of the unit and after complete satisfaction of the product, he paid the balance amount on 27/4/2022. Thereafter the customer had not made any communication to this opposite party. Since the complainant has raised manufacturing defects and services were done by the technicians of the manufactures, this opposite party has no knowledge of the working condition of the machine unit. There is no deficiency of service/unfair trade practice on the part of opposite party No. 1 and opposite party No. 1 is not liable for any reliefs claimed in this case. Therefore the complaint maybe dismissed with costs.
The opposite party No.2 filed version, adopting the version of opposite party No. 1.
According to opposite party No. 2, that the machine unit is sold and used for commercial purpose for profitable business. Hence the complainant is not a consumer. Moreover the commission has no jurisdiction to decide this case where the parties raised the plea of fraud, only civil court has jurisdiction. The opposite party No. 2 denied the averment in the complaint to the effect that rusting of the parts of the unit is due to leakage of gas and thereby resulted in the damage of the unit, the opposite party sold old unit and thus deceived the customer and opposite parties did not provide another freezer and he is entitled for compensation etc. are false and denied herewith. The opposite party No. 1 admits the purchase of the model EWHD580H-HC with serial No. 30084220300357 on 26/04/2022. The manufacturing period of the above unit was in March 2022. There was no delay in selling the unit to the customer from the side of opposite party. The sold unit have warranty of 4 years for commercial purpose to keep the frozen goods. And always there is ice formation in its pipelines. If the customer switched off the unit or keeps any positive temperature, products in the unit there will not be any ice formation in the line and slowly rusting will start due to MS pipe exposed to the air. Thus the rusting pointed by the customer is on the account of the above reason. The gas leakage is due to the rusting of the MS pipe which is due to improper and unauthorized use by the customer. The complainant has not obtained an expert report for the reason of damage to the machine unit. The opposite party submits that they were ready for replacement since the complaint registered is during the warranty period, but the customer was not ready for replacement even in the initial stage. The story of waiting for a new unit till 01/03/2023 is an afterthought for creating a cause of action for the complaint. This commission has no jurisdiction to decide the case where the parties raised plea of fraud and civil courts had jurisdiction. There is no deficiency of service/ unfair trade practice on the part of this opposite party. Hence we are not liable for any reliefs claimed by the complainant.
The complainant filed proof affidavit in lieu of chief examination and the documents produced are marked as Ext. A1 to A3. The complainant is cross examined by the counsel of opposite parties as PW1. Both sides heard and documents perused.
The issues raised for consideration are;
- Whether the complainant is a consumer?
- Whether there is any deficiency in service on the part of opposite parties? Whether the opposite parties provide after sale service to the complainant?
- Whether the complainant is entitled for relief?
- If so, what is the relief?
The first contention raised by the counsel by opposite parties are that the complaint ought to have been filed in the name of the firm and the complainant should have obtained authorization to represent KIFI Agencies who is the purchaser of the unit. Here the complainant has produced document to prove that he is the proprietor of the firm. So definitely he has every right to represent the firm.
According to the CP Act 2019, consumer means any person who - buys any goods, for a consideration which has paid or promised or partially paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such a person, but does not include a person who obtain such goods for resale or for any commercial purpose. The definition of the term the Consumer has undergone textual amendments in 1993 and in 2002. There are 3 parts to the definition depending upon the purpose of purchase. Here the freezer is purchased for keeping frozen goods of M/S Albaik and there by generating profit and not for resale. The Supreme Court has made a significant ruling regarding commercial enterprises that they are not automatically excluded from being considered as consumers under the act. The act has enacted with the objective of protecting and empowering consumers and promoting their participation in the market economy. The act adopts a liberal view in favor of consumers as it is a social-benefit oriented legislation. In Lilavathi Kiritlal Methta Medical Trust v/s unique Shanti developers and others the Supreme Court held that the act seeks to provide consumers with a comprehensive legal frame work for the protection of their rights and interests in the market. If they purchase goods or avail services for personal use consumptions which is not linked to the ordinary profit generating activities. In Harsolia Motors and Rakesh Narula and Company in this case also the NCDRC reversed the definition of consumers and included businessman stating that as they were running businesses to generate profits they are also come under the definition of consumers.
In this case, the purpose of purchase was to keep the frozen food items and there by generate profit. But as per the above discussions he also will come under the definition of consumers. Moreover we rely upon the general principle in section 101 and 102 of the Evidence Act that “One who pleads must prove”. Even though opposite party’s counsel plead the matter vehemently, they have not taken any steps to prove their pleadings. The crucial question in this case is that whether the complainant availed proper after sale service from opposite parties? The opposite party never stated that they had given proper after sale service to the complainant.
The complainant registered the complaint on 13/02/2023 after 10 months of purchase. The product had 2 years warranty and opposite parties are liable to cure the defect as soon as the complaint is registered by the customer. But so far they neither cured the defect nor replaced the product proves unfair trade practice and gross deficiency in service. The irresponsible and lethargic attitude of opposite parties caused monitory loss and mental agony to the complainant. The complainant deserves just and reasonable compensation for long suffering of mental agony.
The next contention raised by opposite parties are that the person who conducted or examined the machinery is not a certified and competent person having accreditation and not an expert to verify and opine the actual cause of failure and current conditions of the machine unit. The expert commissioner may not be a qualified person to examine and opine the actual cause of failure but the issue here is that the product sold by opposite party No. 2 became defective within 10 months and they have not taken any steps to cure the defect during warranty period is gross deficiency of service. Expert report is required only if the defect is not visible. Here it is visible. And the technician of opposite party examined the freezer and revealed the cause of defect also. The both opposite parties are liable to cure the defect of the freezer. But both opposite parties were silent to the request of the complainant for repair/replacement during warranty period is not justifiable. Hence both opposite parties are jointly and severally liable for the loss and hardships undergone by the complainant due to the lethargic attitude of opposite parties.
The relief claimed by the complainant is Rs. 10,00,000/- which is too excessive and without any basis. No documentary evidence is produced to prove such a huge loss. Considering the circumstances of this case, we are of the opinion that an amount of Rs. 15,000/- is a reasonable compensation in this case. The complainant is also entitled for cost of litigation of Rs. 3,000/- also.
Therefore the complaint is partly allowed, directing opposite parties to refund the price of the refrigerator Rs. 36,500/- (Rupees Thirty Six thousand Five hundred only) with a compensation of Rs. 15,000/- (Rupees Fifteen thousand only) along with cost of Rs. 3,000/- (Rupees Three thousand only) to the complainant within 30 days from the date of receipt of copy of this order. On receipt of the amount as above, the complainant is directed to return the defective product to opposite party. Both opposite parties are jointly and severally liable to pay the amount to the complainant.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1 – Photo of the machinery
A2 –Tax invoice
A3 – Registration certificate
C1 – Expert Report
Cross examination
PW1 – Kamaraudeen T
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
JJ/
