BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::

KADAPA Y.S.R DISTRICT

PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT

                                                                               SMT. K. SIREESHA, LADY MEMBER                                     

Friday, 28^th October 2016

CONSUMER COMPLAINT No. 46 / 2016

P. Narasimha Reddy, S/o Venkatasubba Reddy,

aged about 56 years, Hindu, Residing at D.No. 3/274,

Opp. Koneru, Kothapalli Village,

Penagalur Post and Mandal,                                                          ….. Complainant.

Vs.

1.  The Partner, Ganesh Marketing, Branch Office,

     D.No. 1/416, Main Road, Opp. Ammavarisala,

     Rajampet town and Mandal, YSR District.

2.  The Partner, Ganesh Marketing, Head Office,

     Door No. 19/201-1, Madras Road, Kadapa YSR District.        ………Opposite parties

This complaint coming on this day for final hearing on 24-10-2016 in the presence of Sri S. Rahasmath Unnisa Begum, Advocate for Complainant and Sri S. Balaji and Sri P. Awar Basha, Advocates for Opposite parties and upon perusing the material papers on record, the Forum made the following:-

O R D E R

(Per Smt. K. Sireesha, Member),

1.                Complaint filed under section 12  of C.P. Act 1986.

2.                The brief facts of the complaint are as follows:- The Complainant is the resident of D.No. 1/416, Main road, Rajampet town and Mandal, YSR District.  The O.P.2 is the partner of Ganesh Marketing, Head office, D.No. 19/201-1, Madras Road, Kadapa.  On 29-4-2016 the Complainant approached O.P.1 and purchased “Kenstar Wonder Cool, air Cooler, bearing No. 16101536050550146” for Rs. 9,200/- from O.P.1 after receiving of full payment of Rs. 9,200/- the O.P.1 issued tax invoice to the Complainant.   After full transactions the Complainant shifted the said air cooler in a rented auto with expenses of Rs. 300/- immediately the Complainant removed the cover form the air cooler and started, but it was not worked.  After some time again in the Complainant tried and started the cooler at that time loud voice came from the said cooler with big water drops like rain drops. T he cm came to know through one mechanic Naga Raja that left side of pipe of the cooler was damage and leakage and also one right side stand wheel was damaged. Immediate the same day the Complainant informed the said defeats to the O.P.1 through a telephone.  The O.P.1 replied and assured to the Complainant that he will come on 30-4-2016 and will be set right the said defects.  The Complainant waited till 30-4-2016.  On 01-5-2016 the Complainant telephoned to the O.P1. on several times, but the O.P.1 did not lifted his telephone.  On 1-5-2016 evening the Complainant approached the O.P.1 party and 1questioned about their negligence at the same time O.P.2 party also present there, both the Opposite parties gave evasive replies and necked out the Complainant abusing with filthy language.

3.                So immediately on 2-5-2016 the Complainant got issued legal notice to the O.P.1 with a request to replacement of said air cooler.  Having knowledge about the litigation the O.P.1 party managed the post man lastly the post man returned the legal notice with false endorsement.  Again on 11-5-2016 the Complainant got issued a legal notice to both the Opposite parties for that the O.P.2 gave a reply on 24-5-2016 with all false allegations but the O.P1. did not choose any reply.  On  the same day i.e.                11-5-2016 the Complainant addressed a registered letter with registered post with acknowledgement to the superintendent, post office, kadapa with a request to take necessary action against the concern post man for that said the superintendent of post office, kadapa addressed a letter to the Inspector, Post office, Rajampet with a request to conduct and enquire the matter and submit his report and same copy also received to the Complainant. Again on 24-5-2016 the Complainant again got a legal notice to the both the Opposite parties.  The  O.P.2 also one of the partner of Ganesh Marketing, Head Office, Kadapa and he also liable to the punishable as per law.  The O.P.1 and postal department were cheated the Complainant.   

4.                Knowing the stage of air cooler the O.P.1 sold to the Complainant with a view to harass and cause damages to the Complainant and cheated the Complainant.  Inspite of several requests and receiving notices the Opposite parties adamantly failed to replacement of air cooler or refused amount, the Complainant has put mental agony for all these days.  The Opposite parties are liable to compensate the Complainant.  The Opposite parties are liable to refund amount of Rs. 9,200/- together with interest and compensation to the Complainant. 

5.                It is therefore, prayed that the Hon’ble forum maybe pleased to allow the complaint and pass orders in favour of the Complainant directing the Opposite parties (1) to refund the amount of Rs. 9,200/- towards cost of to the air cooler with interest at 24% p.a. from the date of purchase i.e. 29-4-2016 till the date of realization, (2) to pay Rs. 25,000/- towards compensation for causing mental agony and physical strain to Complainant by keeping quiet for all these days without rectifying the cooler and (3) to pay Rs. 3,000/- towards the costs of the complaint and other reliefs as the Hon’ble forum deems fit and proper in the circumstances of the case. 

6.                Opposite parties filed written version that the Complainant is neither just nor maintainable either in law or on facts of the case.  The Complainant has put to strict proof of all the allegations which are not specifically admitted herein by these Opposite parties.

7.                At the ought set due procedure laid under section 13 of C.P. Act 1986 has not been followed by the Complainant which clearly denotes that whenever the Complainant alleges defect in goods which cannot be determined without proper analysis or test of the goods.  The District Forum shall obtain a sample of the goods from the Complainant seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make on analysis or test, whichever may be necessary with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the district forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum, in the absence of any expert opinion it cannot presumed that the alleged goods are suffering with defects.

8.                It is submitted that the Complainant purchased Kenstar wonder cool air cooler from the O.P.1 and the O.P.12 also issued the warranty card to the Complainant. The manufacturer of Kenstar branch Air Cooler undertakes that the products is warranted against manufacturing defects for a period of 1 year from the date of purchase as per the terms and conditions.  Further the warranty extended herein is in lieu of all implied conditions and warranties under the law and is confined to the repair or replacement of defective parts and does not cover any consequential or resulting liability, damage or loss arising from such defects. Furthermore the warranty in no case shall extend to the payment or any monetary consideration whatsoever from the replacement or return of the products as whole.  Under taking the terms and conditions only the Complainant purchased the said goods.

9.                It is submitted that the Complainant purchased Kenstar wonder cool air cooler from the O.P.1 and the manufacturer of the said Kenstar wonder cool air cooler has not been added as the opposite parties who is the necessary party to the aforesaid proceedings. When the manufacturer has not been added as party non – joinder of necessary party is bad to the Complaint.  It is submitted that the allegations leveled in para No. 3 of the complaint that on 29-4-2016 the Complainant purchased Kenstar wonder cool air cooler for Rs. 9,200/- from O.P1. and O,P.1 issued tax invoice to the Complainant and that the Complainant took the said goods to his home is not denied and the same is admitted by these Opposite parties.  The other allegations in the said para are utterly false and denied by these Opposite parties. 

10.              It is submitted that the further allegations in para No. 4 to 6 of the complaint are false and labeled by the Complainant except receiving the letter dt.                    11-5-2016  and after receiving the same they had given the suitable reply with good faith on 24-5-2016.  After receiving the reply notice the Complainant never turned up to the Opposite parties either to provide the service or to repair the said goods, so there is no negligence of service on their part. The said complaint is filed against these Opposite parties only to defame and to degrade them in the society and to get unlawful gain.   As seen from any angle there are no merits in the present complaint and it is liable to be dismissed in limini.  Therefore, prayed that the Hon’ble form may kindly be pleased to dismiss the compliant with exemplary costs as expedient in the interest of justice.

11.              On the basis of the above pleadings the following points are settled for determination. 

1. Whether the complainant is eligible for compensation as        prayed by him or not?

                            ii.  Whether there is negligence or deficiency of service on the               part of the Opposite parties or not?

        iii.    To what relief?

12.              On behalf of complainant Exs. A1 to A7 were marked.       

13.              Point Nos. 1 & 2. As seen from complaint and averments of the counter it is very clear that the Complainant has purchased Kenstar wonder Air cooler from O.P.1 on 29-4-2016.  Ex. A1 supports the same.  After that, as per Complainant version the air cooler was not functioned even for one hour.  As per the Complainant version he intimated the same through telephone R1 but the Opposite parties had not tuned up to send his service man to find out the defect in the air cooler.  Exs. A2, A3, A4 and A5 are the notices given by the Complainant and O.P.2 they are also very clear about the defect in the air cooler.  As per version of Opposite parties 1 & 2 they had not send their service man to rectify the defect in the air cooler after receiving notice of the Complainant also.  So it clearly proves negligence and deficiency of service on the part of the Opposite parties 1 & 2.   The co had paid Rs. 9,200/- for purchase of air cooler.  When the customer purchases any article for their comfort there should be proper working of the article, otherwise it will not be fulfill the purpose.  Here it is very clear that there is defect in the air cooler.  So the Complainant is eligible for compensation as prayed by him.  There is deficiency of serviced and negligence on the part of the Opposite                  parties 1 & 2.

14.              Point No. 3. In the result the complaint is allowed, directing the Opposite parties 1 & 2 to pay Rs. 9,200/- (Rupees Nine Thousand Two Hundred Only) towards cost of the air cooler with 9% interest from the date of filing till realization, pay Rs. 5,000/- (Rupees five thousand only) towards compensation and pay Rs. 3,000/- (Rupees three thousand only) towards cost of the complaint, within 45 days of date of receipt of orders.  The Complainant is directed to return the cooler to Opposite parties under receipt.   

                   Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the  28th October 2016.

MEMBER                                                                                              PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant :   NIL                                        For Opposite parties :            NIL

Exhibits marked for Complainant: -

Ex. A1                   Tax invoice dt. 29-4-2016 issued by O.P.1.

Ex. A2                   P/c of office copy of the notice dt. 2-5-2016 with unserved postal cover.

Ex. A3         Office copy of the notice dt. 11-5-2016 alon with postal receipts and acknowledgement.

Ex. A4                   office copy of the notice dt. 24-5-2016 with postal eceipts.

Ex. A5                   O/c of reply notice dt. 24-5-2015 by O.P.2

Ex. A6                   Lr. Dt. 11-5-2016 addressed to the superintendent of posts, Kadapa.

Ex. A7                   Departmental of posts India dt. 26-5-2016 service on the Complainant

Exhibits marked on behalf of the Opposite parties : -                NIL 

MEMBER                                                                                        PRESIDENT                                  

Copy to :-

1. Sri S. Rahasmath Unnisa Begum, Advocate for Complainant.
2. Sri S. Balaji and P. Anwar Basha, Advocates for Opposite parties

B.V.P