State Consumer Disputes Redressal Commission
Serafiao Bernabe Vaz vs Suraj Kumar Pode & Another on 7 April, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 02/2016
Serafiao Bernabe Vaz
Proprietor of Gaylin Chinese Restaurant
Shar N Sorai Apartments
Shop No. 1
Varde Valaulikar road
Margao - Goa. .... Appellant
v/s
1.Suraj Kumar Pode
c/o. Kool Technology
Shambi Building
Chogum Road
Opp. Water tank
Alto Porvorim
Bardez, Goa.
2. Middleby Celfrost Innovations (P) Ltd.
With office at
(a) Unit Nos. SF-713-716, 7th floor,
JMD Megapolis, Sohna Road,
Sector 48, Gurgaon 122018,
Haryana, India.
And Registered office
(b) Unit no. G-01 and G-02, Prestige Garnet,
No. 36, Ulsoor road,
Yellappa Chetty Layout,
Bangalore 56 042,
Karnataka, India. ..... Respondents
Shri. C. A. Coutinho, Lr. Counsel for the Appellant.
Ms. T. Bhosle, Lr. Counsel for the Respondents.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 07/04/2016
ORDER
2 [Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 27/11/2015 passed by the Lr. Consumer Disputes Redressal Forum, South Goa, ("Forum", for short) in Complaint No. 32/2013 whereby the said Complaint came to be partly allowed with a direction to the Opposite Parties to pay to the Complainant a sum of Rs. 10,000/- within a period of 30 days from the date of the order failing which the said amount would carry interest at the rate of 9% p.a. after the expiry of the said period of 30 days.
2. The Appellant was the Complainant whereas Respondents were the Opposite Parties ("OP/s, for short) before the Forum. The parties shall hereinafter be referred to as per their status in the said Complaint.
3. The Complainant had filed the said Complaint for recovery from the OPs of a sum of Rs. 1,22,850/- with interest at the rate of 18% p.a. from 17/11/2011; a sum of Rs. 1,25,000/- which is the actual loss suffered by the Complainant due to deterioration of fish and prawns with interest at the rate of 18%; cost of about Rs. 1,00,000/- towards losses due to inability to stock perishable items, agony, inconvenience suffered by the Complainant and by his hotel; and a sum of Rs. 1,00,000/- towards mental torture, agony, inconvenience due to the attitude of the OPs.
4. Case of the Complainant, in short, is as follow:-
The Complainant runs an upcountry Chinese Restaurant with bar at Margao as self-employment and for his livelihood, under the business name 'Gaylin'. The Complainant requires deep freezers for stocking perishable items like seafood and other meats. The OP No. 1 represented to the Complainant that he supplies deep freezers of brand 'Celfrost Professional' which would meet the requirement of the Complainant particularly for stocking of seafood items. The 3 Complainant paid Rs. 1,22,850/- to the OPs by cheque bearing No. 003353 dated 17/11/2011 drawn on Central Bank of India, Cuncolim Branch and the OP No. 1 supplied to the Complainant a deep freezer model GN 1200 BTM Sr. No. 147391 and issued a warranty certificate which shows OP No. 2 as the manufacturer and OP No. 1 as the dealer. The said deep freezer was installed by technician of OP No. 1 on 14/12/2011 on which day it was found to be defective due to leakage of gas and accordingly the technician submitted his report with remark that the freezer requires gas to be recharged, a copy of which report was delivered to the Complainant. The Complainant declined to accept the said defective deep freezer.
Within a few days of the installation of the said deep freezer, the OP No. 1 agreed to replace the same with a new one and accordingly a new freezer bearing model No. GN 1200 BTM Sr. No. 185542 was brought and was installed on 29/03/2012. The same worked for some time but failed to function and was repaired by the OP No. 1. By end of July, 2012 it was noticed that a huge stock of fish and prawns worth about Rs. 1,25,000/- was destroyed due to the failure of deep freezer. A number of complaints were lodged by phone and the freezer was repaired but could not be used since the breakdowns were too frequent and it was extremely difficult to stock perishable items. Upon complaint lodged to the OP No. 1, OP No. 1 failed to attend but after a constant follow up a technician attended on 04/10/2012 and serviced the deep freezer but when the Complainant checked the same for cooling it was noticed that the same was not functioning and therefore another complaint was lodged on 10/10/2012 upon which a technician attended the freezer and stated that the gas was short. On 18/10/2012 the Complainant again called upon the OP but the technician could not repair the freezer and advised to change the compressor as well as the gas under warranty. A new compressor (Kirloskar) was replaced under warranty but it failed to function. Again on 19/10/2012 the technician of the OP came with a Denfos compressor stating that 4 kirloskar compressor was of low capacity. The kirloskar compressor under warranty having failed to function was replaced by Denfos compressor which also failed to function. On 19/10/2012, a technician from Pune came to the restaurant of the Complainant and started charging the gas. During the process of gas filling there was an explosion causing damage to another big freezer and a wall of the restaurant. In November, 2012 the OP No. 1 sent personnel to take back the freezer promising to replace the same but till the date of filing of the complaint deep freezer has not been replaced. A notice was sent to the OP No. 2 by email but the same has not been replied to. There is complete deficiency of service by the OPs. Hence the Complaint.
5. The Respondents filed their written version thereby resisting the Complaint. The OPs alleged in short as follows:-
The machine was purchased by the Complainant for commercial/business purpose and therefore the Complainant will not qualify to be a consumer and/or will not fall within the definition of consumer. The invoice/delivery challan dated 21/03/2013 will disclose that the supply was subject to Mapusa jurisdiction. Therefore the District Forum would lack territorial jurisdiction. There is neither manufacturing defect nor any deficiency in service and hence there is no cause of action. It is false that the freezer was defective due to leakage of gas. The deep freezer supplied to the Complainant in December 2011 was perfectly in order without any problem and defects complained of were on account of mishandling of the deep freezer and electricity voltage fluctuations at the place of installation. The OP with the intention to maintain good relations towards its client agreed to replace the deep freezer as stated in the reply dated 09/05/2013 of R. K. Khurana and Associates, New Delhi. It is false that the stock of fish and prawns worth about Rs. 1,25,000/- was destroyed and that the deep freezer had failed to work. The technicians were deputed to attend to the 5 machine as and when the Complainant had made complaints. On 05/10/2012 the technician of the OP had found that the freezer was working properly and this fact was acknowledged by the Complainant. Upon receipt of another complaint, the technician of the OPs had reported that on account of massive electric voltage fluctuation the compressor of the deep freezer had become weak. The OP installed compressor of kirloskar make since Denfos compressor which is imported was not in stock. However, the kirloskar compressor failed due to high voltage electric fluctuations. The master technician of the OPs came down from Pune and changed the kirloskar compressor with Denfos compressor and also filled the gas in the new compressor on 29/10/2012. Thus, the entire problem was resolved to the satisfaction of the Complainant. It is false that there was any explosion or damage. It is false that in month of November, 2012 the OP No. 1 sent personnel to take back the freezer promising to replace the same. No case is made out for entertaining the present Complaint which has been filed with malafide intentions.
6. The Complainant filed his own affidavit-in-evidence whereas the OPs filed the affidavit-in-evidence of Ms. Shilpa Kankonkar, the authorized representative. Both the parties filed written arguments before the Forum. By order dated 27/11/2015, the Forum held that the objection about the status of the Complainant as a "Consumer" within the meaning the Section (2)(1)(d)(i) of the Act is devoid of any merits. However, on merits, the Forum found that nothing was brought on record by the Complainant even to suggest that he had stored perishable goods in the freezer and that such goods perished due to the malfunctioning of the freezer. The Forum allowed the Complaint partly only to the extent of direction to the OP to pay a sum of Rs. 10,000/- towards the agony and inconvenience suffered due to the supply of a defective freezer which mal-functioned and 6 due to which the Complainant had to suffer. It is this order which is impugned in the present appeal.
7. Heard Mr. C. A. Coutinho, Lr. Counsel for the Complainant and Ms. T. Bhosle, Lr. Counsel for the OPs. Perused the written submissions filed by both the parties. We have also gone through the record and proceedings of the Complaint No. 32/2013.
8. It was argued by Lr. Counsel for the OPs that the OPs have already paid to the Complainant the decreetal amount of Rs. 10,000/- within the time period stipulated in the impugned order and that the Complainant accepted the said amount without any protest and therefore the Complainant has accepted the impugned order. He therefore urged that the appeal be dismissed on this ground. We do not agree with the above submission of the Lr. Counsel for the OPs. Aggrieved persons have statutory right under Section 15 of the Consumer Protection Act, 1986 (the Act, for short) to file appeal. Merely because payment is made in terms of the impugned order or that the same has been accepted without protest, that does not mean that the Complainant is not aggrieved by the order and cannot challenge the same. In order to avoid payment of interest, the OP might have paid the amount to the Complainant. There is therefore no substance in the above objection of the OPs.
9. The Lr. Counsel for the OPs also contended that the Complainant had purchased the machine for commercial/business purpose and therefore he does not qualify to be a consumer within the definition under Section 2(d)(i) of the Act. In this regard, Mr. Coutinho, Lr. Counsel for the Complainant argued that the Complainant had not purchased the said machine for resale but had purchased it for earning his livelihood by means of self-employment and therefore the Complainant is consumer. He relied upon "Madan Kumar Singh (Dead) Through LR. vs. District Magistrate, Sultanpur & Others, [(2009) 9 SCC 79]. In the case supra, the Hon'ble Supreme 7 Court observed that a reading of the definition of "Consumer" makes it clear that Parliament wanted to exclude from the scope of the definition the persons who obtain goods for resale and also those who purchase goods with a view to use such goods for carrying out any activity for earning. The Hon'ble Supreme Court has observed that the immediate purpose as distinct from the ultimate purpose of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction. In the case supra, the Appellant had bought the truck for consideration which was paid by him and it was brought to be used exclusively for the purpose of earning his livelihood by means of self-employment. There was nothing on record to show that he wanted to use the truck for any commercial purpose. It has been held that buyers of goods or commodities for "self- consumption" in economic activities in which they are engaged would be consumers as defined in the Act.
10. In the Complaint, the Complainant has specifically pleaded that he runs Chinese Restaurant with Bar as self employment and for his livelihood and for that he requires deep freezers. The Complainant had purchased the said deep freezer for consideration, and for using the same for earning his livelihood by means of self- employment. Thus, keeping in view the principle laid down by the Apex Court in the case of "Madan Kumar Singh (Dead) Through LR"
(supra), it is clear that in the present case the Complainant is a consumer. Even otherwise, the Forum has held that the Complainant is a Consumer and the said judgment of the Forum has not been challenged by the OPs.
11. The first Deep Freezer was supplied to the Complainant on 14/12/2011. The records show that on the same day the Complainant lodged a complaint then there was leakage of gas. The case of the OPs that the defects sought to be complained of by the Complainant have been caused on account of mishandling of the 8 deep freezer and electricity voltage fluctuations at the place of installation cannot be believed since leakage of the gas was started on the very day of the installation. The service report of the technician, dated 14/12/2011, itself, mentions that new gas replacement was required. There is no remark that this leakage was due to any mishandling of the machine by the Complainant or due to electricity voltage fluctuation. Admittedly, the OP replaced the originally supplied deep freezer sometime on 29/08/2012. Immediately, there is complaint dated 04/10/2012 made by the Complainant about defrosting. There is also complaint dated 10/10/12 made by the Complainant saying that cooling work is not done properly. The remark of the technician is that waiting for gas charging. Thereafter, there is complaint dated 18/10/2012 made by the Complainant saying that the machine was not properly working. Here the remark of the technician was that the compressor and gas charging was needed. In none of the remarks, the technician has mentioned that such defects have been caused on account of mishandling of the deep freezer or electricity voltage fluctuation. If at all the defects had occurred due to the causes as alleged by the OPs and not the manufacturing defects, the question arises as to why the OPs replaced the machine. It cannot be believed that merely to maintain good relations towards cliental, the entire deep freezer during its warranty period would be replaced. During warranty period the deep freezer could have been repaired. It is also seen that though the compressor initially installed was "Denfos compressor" which is imported, after the complaint received, the OP installed, compressor of kirloskar make which was inferior as compared to Denfos compressor. Again, the said Kirloskar compressor had to be replaced with Denfos Compressor and new gas had to be filled in this Compressor on 29/10/2012. The records reveal that from time to time the complainant had made complaints. It is pertinent to note that even the second deep freezer was replaced by the Ops with a new deep freezer on 18/11/2013 i.e. after the 9 filing of the Complaint. There is finding given by the Forum that the Complainant has suffered agony and inconvenience due to supply of defective freezer which malfunctioned and due to which the Complainant had to suffer. The above finding has become final since the same is not challenged by the OPs.
12. It is true, as observed by the Forum that there is no evidence on record to establish that the Complainant had stored fish, prawns or meat worth about Rs. 1,25,000/- in the said freezer and that these food items were destroyed. Therefore, the forum cannot be blamed for not having granted prayer (b) through which an amount of Rs.1,25,000/- was claimed towards actual loss suffered by the Complainant due to the deterioration of fish and prawns. Since the OPs had replaced the deep freezer for the second time on 18/11/2013 and there was no further complaint, the Forum also cannot be blamed for not having granted prayer (a) wherein the sum of Rs. 1,22,850/- was claimed with interest from 17/11/2011, that being the price for deep freezer paid by the Complainant.
13. It is pertinent to note that the Complainant had also made a prayer (c) to be compensated with cost of about Rs. 1,00,000/- towards losses due to him being unable to stock perishable items, agony and inconvenience suffered by him and hotel due to the said lapse. The Lr. Forum has not at considered this prayer. There is no reason/finding as to why the Complainant is not entitled to any amount towards prayer (c). The Forum has rightly held that agony and inconvenience has been suffered by the Complainant due to the supply of the defective freezer with malfunctioning and due to which the complainant has to suffer. The Forum has granted only Rs. 10,000/- as compensation towards the agony and inconvenience but has not granted any compensation towards the loss suffered on account of being unable to store fish, prawns and meats in the said deep freezer which was malfunctioning for quite a number of months till it was replaced. A plain reading of the legal notice dated 10 07/01/2013 sent by the Complainant to the OP No. 1 and the reply dated 09/05/2013 sent by the OP No. 1 to the Complainant reveals that the deep freezer which was installed on 14/12/2011 was not working and was replaced on 29/03/2012. Thus, initially for about 3½ months, the first freezer was not working. The said correspondence further reveals that this second deep freezer was taken away by the OPs sometime in November 2012. The new deep freezer was installed on 18/11/2013. Hence, again for about an year, the Complainant was without a deep freezer.
14. In paragraph 17 of the affidavit-in-evidence, the Complainant has specially stated that he is entitled to be further compensated with costs of about Rs. 1,00,000/- towards losses caused to him upon being unable to stock perishable items and due to inconvenience caused to the hotel on account of the same. These are general damages which are claimed. The Complainant had not purchased the deep freezer as a showpiece for entertainment of the customers but had purchased the same for stocking perishable items like sea foods and other meats. Having been unable to stock such perishable items it can certainly be taken for granted that the Complainant must have sustained loss. Considering the period during which the complainant could not store the items, we are of the considered view that on this count, the Complainant has to be compensated in the sum of Rs. 50,000/- alongwith interest at the rate of 9% p.a. as from 14/12/11 till 18/11/13.
15. In our considered view, the cost of Rs. 10,000/- towards mental torture, agony and inconvenience as granted by the Forum is very less and not reasonable. We are of the view that the sum of Rs. 15,000/- should be granted as compensation on that ground.
16. In the result, we pass the following:-
11(a) The impugned order dated 27/11/15 stands modified as under:
(b) The complaint is partly allowed.
(c) The OPs shall pay to the Complainant a sum of Rs.
50,000/- alongwith interest at the rate of 9% p.a. as from 18/12/2011 to 18/11/2013 within a period of 30 days from today failing which the interest payable on the principal amount shall be 12% p.a. from the date of expiry of said period of 30 days till the date of payment.
(d) The OPs shall pay to the Complainant a sum of Rs.
15,000/- towards mental torture, agony and
inconvenience caused to him. This amount shall be
paid within 30 days from today failing which the same shall carry interest at the rate of 9% p.a. after the expiry of the said period of 30 days till the date of actual payment.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
sp/-