State Consumer Disputes Redressal Commission
1. M/S Whirlpool Of India Limited vs 2. M/S Whirlpool Of India Limited, on 15 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 121 of 2014 Date of Institution : 09.04.2014 Date of Decision : 15/04/2014 1. M/s Whirlpool of India Limited, SCO No.910, First Floor, Manimajra, Chandigarh, through its Branch Manager. ..Appellant No.1/Opposite Party No.4 2. M/s Whirlpool of India Limited, Plot No.A-4, MIDC Ranjangaon, Taluka Shirur, District Pune, Maharashtra, through its Managing Director. ..Appellant No.2/Opposite Party No.2 3. M/s Whirlpool of India Limited, Whirlpool House, Plot No.40, Sector 44, Gurgaon 122002 through its General Manager. ..Appellant No.3/Opposite Party No.3 V e r s u s Amit Kumar s/o Late Sh.Narain Dass, R/o H.No. HL 455, Phase 7, SAS Nagar, Mohali. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Smt. Geeta Gulati, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 20.02.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly accepted the complaint, filed by the complainant (now respondent) and directed Opposite Parties No.1 to 4 (now three of which are the appellants/Opposite Parties No.2 to 4), as under:-
For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OPs No.1 to 4 are directed :-
i) To make payment of compensation of Rs.10,000/- to the complainant on account of deficiency in service.
ii) To make payment of an amount of Rs.5500/- to the complainant towards litigation expenses.
iii) The complaint fails against OPs No.5 and 6.
This order shall be complied with by OPs No.1 to 4 within one month from the date of receipt of its certified copy, failing which, OPs No.1 to 4 shall be liable to refund the above said awarded amount to the complainant along with interest @ 9% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The complaint against Opposite Parties No.5 and 6, was dismissed by the District Forum, on the ground that there was no deficiency, in rendering service, on their part.
3. The facts, in brief, are that the complainant purchased one Whirlpool Refrigerator Frost Free, Model No.NEO IC425 CLUB (10), having 405 ltrs. capacity, for personal use, on 15.06.2013, from Opposite Party No.1 (dealer), vide retail invoice, copy whereof is Annexure C-1, for an amount of Rs.41,200/-. Opposite Parties No. 2, 3 and 4 (now appellants), are the manufacturers of the said Refrigerator. Opposite Parties No.5 and 6 had a tie-up with Opposite Parties No.1 to 4, and they financed an amount of Rs.40,800/-, to the complainant, which was repayable in equal monthly installments, to the tune of Rs.4,080/-, for 10 months. It was stated that, at the time of purchase of the said Refrigerator, the representatives of Opposite Parties No.1 to 4, assured the complainant, that the same (Refrigerator) was the latest and the best model available, in the market, and, in case of any problem, in the same, they had a replacement policy.
4. It was further stated that within two months of purchase of the said Refrigerator, i.e. on 11.08.2013, the same suddenly stopped working completely. It was further stated that, on the same day i.e. on 11.08.2013, the complainant called the Customer Care Nos.60008558 and 18601804558 of Opposite Parties No.1 to 4, and registered a complaint, about faulty working of the new Refrigerator. Complaint No.CH0813004778 was provided to the complaint. On the next day, one Company Service Engineer of Opposite Parties No.1 to 4, visited the premises of the complainant for checking the said Refrigerator. After checking the said Refrigerator, thoroughly, the said Engineer informed the wife of the complainant that there was a major manufacturing defect, in the same, and many parts thereof, needed replacement. Since, the complainant was not at home, at that moment, he talked to that Service Engineer, on phone, and asked him to get the Refrigerator replaced because it had a patent manufacturing defect, but he (Service Engineer) left with the promise that he would visit again, with his senior, on the next day. However, he did not visit the premises of the complainant, thereafter.
5. On 13.08.2013, the complainant again lodged a complaint with Opposite Parties No.2 to 4, and he was allotted complaint No. CH0813005776. On 14.08.2013, another engineer of Opposite Parties No.1 to 4, visited the premises of the complainant, and after checking the said Refrigerator, informed him (complainant) that the same was having some manufacturing defect. It was suggested by the said Engineer, that he would change the compressor of the Refrigerator first, and, thereafter, the other issues would be seen. It was further stated that since there was defect, in the compressor of the Refrigerator, within two months of its (Refrigerator) purchase, it was a patent manufacturing defect. It was further stated that the complainant again registered complaint, with the Customer Care Centre of Opposite Parties No.1 to 4, on 16.08.2013, but did not get any response. It was further stated that Opposite Parties No.1 to 4, failed and neglected to change the said Refrigerator, with a new one, despite many requests, having been made by the complainant. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing Opposite Parties No.1 to 4, to replace the said defective Refrigerator, with a new one; pay compensation to the tune of Rs.25,000/-, for mental agony, physical harassment, deficiency, in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.10,000/-. It was also prayed that Opposite Parties No.5 and 6 be directed not to deduct the installments of the defective Refrigerator, till the same was replaced with a new one.
6. Opposite Parties No.1 to 4 (out of whom Opposite Parties No.2 to 4 are the appellants), were duly served, but neither they, nor any authorized representative, on their behalf, put in appearance, in the District Forum, as a result whereof, they were proceeded against exparte, vide order dated 18.11.2013.
7. Opposite Parties No.5 and 6, in their joint written version, pleaded that M/s Bajaj Finance Limited was a Company, incorporated under provisions of the Companies Act, 1956. It was stated that Opposite Parties No.5 and 6 were one and the same entity. It was further stated that Opposite Party No.1, being a dealer of the electronic items, had dealership of Opposite Party No.2 and Opposite Parties No.3 and 4 are the Managers of Opposite Parties No.2. It was further stated that the complainant had entered into a loan proposal, on 21.06.2013, with Opposite Parties No.5 and 6, and availed of finance/loan, to the tune of Rs.40,800/,- for the purchase of one whirlpool Refrigerator. It was further stated that the said finance/loan amount was repayable, in equal monthly installments of Rs.4080/-, payable for 10 months. It was further stated that Opposite Parties No.5 and 6, being the financer, were not at all responsible for any delay, in delivery, or non delivery of the product or any manufacturing defect therein. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No. 5 and 6, nor they indulged into unfair practice. The remaining averments, were denied, being wrong.
8. The complainant and Opposite Parties No. 5 and 6, led evidence, in support of their case.
9. After hearing the Counsel for the complainant, Opposite Parties No. 5 and 6, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.2 to 4.
11. We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
12. The Counsel for the appellants, submitted that the Refrigerator, in question, was replaced with a new one, on 18.10.2013, and not just a few days, earlier to the passing of the impugned order, in the year 2014, as recorded by the District Forum, in paragraph number 6 of the same. She further submitted that the complaints were, no doubt, lodged by the complainant, regarding defects in the Refrigerator, and the same were attended to, by the engineers of Opposite Parties No.1 to 4. She further submitted that compressor of the Refrigerator, in question, was not working properly, and, as per the terms and conditions of warranty, the same could be replaced by the appellants, but the complainant refused to get the same replaced, as he always insisted on replacement of the Refrigerator, with a new one. She further submitted that the observation of the District Forum that the Refrigerator was suffering from inherent manufacturing defects was not based on any expert evidence. She further submitted that the District Forum was wrong, in awarding excessive compensation, to the tune of Rs.10,000/-, and litigation cost of Rs.5500/-. She further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
13. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. There is, no dispute, with regard to the factum of purchase of one Whirlpool Refrigerator Frost Free, Model No.NEO IC425 CLUB (10), having 405 ltrs. capacity, by the complainant, for personal use, on 15.06.2013, from Opposite Party No.1 (dealer), vide retail invoice, copy whereof is Annexure C-1, for an amount of Rs.41,200/-. Opposite Parties No.1 to 4, (out of whom Opposite Parties No.2 to 4 are the appellants), were duly served, but neither they, nor any authorized representative, on their behalf, put in appearance, in the District Forum, as a result whereof, they were proceeded against exparte, on 18.11.2013. The complainant, in his affidavit, in respect of the averments, contained in the complaint, in clear-cut terms, stated that right from the very beginning, the Refrigerator, in question, was defective, and he made a number of complaints, but the same was not replaced. It was also proved from the averments, contained in the complaint, duly supported by the affidavit of the complainant, submitted by way of evidence, that the Refrigerator, which had been purchased by him, stopped working, as on 11.08.2013. According to the Counsel for the appellants, the Refrigerator, in question, was replaced on 18.10.2013. The factum that the Refrigerator was replaced, as per the submission of the Counsel for the appellants, on 18.10.2013, with a new one, in itself, was sufficient to prove that it was suffering from some inherent manufacturing defect. Had it been not suffering from any inherent manufacturing defect, Opposite Parties No.1 to 4, would not have replaced the same, with a new one, and would have insisted for repairs or replacement of the defective parts thereof. When the facts speak for themselves, then there is no need to prove the same through expert evidence. No doubt, in paragraph number 6 of the impugned order, the District Forum recorded that it was only a few days, before passing of the said order, in the year 2014, that the said Refrigerator was replaced. Even if, it is assumed that the Refrigerator was replaced on 18.10.2013, when it had stopped working, on 11.08.2013, it means that atleast for two months, the complainant could not use the same. The complainant purchased the Refrigerator, for using the same for various purposes, but he was deprived of using the same, for about two months. The District Forum was, thus, right in holding that the Refrigerator was suffering from inherent manufacturing defects. The findings of the District Forum, in this regard, being correct, are affirmed.
14. On account of the factum that the Refrigerator stopped working on 11.08.2013, and was, ultimately, replaced on 18.10.2013, i.e. after more than about two months, in itself, was sufficient to prove that a lot of mental agony and physical harassment was caused to the complainant. One can really imagine the condition of a person, like the complainant, who purchased a Refrigerator, for a sum of Rs.41,200/-, for using the same, for his comfortable living, but was unable to use the same, as it became defective, after about two months of the purchase thereof. It is settled principle of law, that compensation should be commensurate with the facts and circumstances of the case, and injustice caused to the consumer. In our considered opinion, compensation in the sum of Rs.10,000/-, awarded by the District Forum, for mental agony and physical harassment, caused to the complainant, as also deficiency, in rendering service, on the part of Opposite Parties No.1 to 4, could not be said to be, in any way excessive. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
15. Coming to the litigation costs of Rs.5500/-, in our considered opinion, the same are also not excessive. When the new Refrigerator purchased by the complainant stopped working and was not replaced with a new one, by Opposite Parties No.1 to 4, for the period of more than two months, left with no alternative, he had to file a Consumer Complaint, on 07.10.2013. The complainant had to engage a Counsel, for filing the Consumer Complaint, and prosecuting the same. For engaging the Counsel, to file the complaint and prosecuting the same, the complainant must have paid him the fees. Litigation expenses to the tune of Rs.5500/-, therefore, granted by the District Forum, could not, in any way, be said to be excessive, but reasonable. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
16. No other point, was urged, by the Counsel for the appellants.
17. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced.
15/04/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg