State Consumer Disputes Redressal Commission
Mrs Asha Anil Gachke vs M/S Godrej & Boyce Mfg. Ltd. on 19 January, 2023
1 (A/16/445)
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
APPEAL NO.A/16/445
(Arisen out of order dated 28/01/2016 passed in Consumer Complaint No.CC/43/2011 by
Addil. District Consumer Commission, Mumbai Suburban District)
Mrs.Asha Anil Gachke,
2/12, Samrat, K.C. Marg,
Bandra Reclamation, ......Appellant
Bandra (W), Mumbai - 400 050. (Org.Opposite Party No.1)
Versus
1. M/s. Godrej & Boyce Mfg. Ltd.,
Pirojshah Nagar, Vikhroli,
Mumbai - 400 079.
2. M/s. Godrej & Boyce Mfg. Ltd.,
Appliances Division,
Pirojshah Nagar, Vikhroli,
Mumbai - 400 079.
3 The Manager,
Service Division,
M/s. Godrej & Boyce Mfg. Ltd.,
Pirojshah Nagar, Vikhroli,
Mumbai - 400 079.
4. Manager (Ms.Sangeeta Mishra)
M/s. Godrej & Boyce Mfg. Ltd.,
Pirojshah Nagar, Vikhroli,
Mumbai - 400 079.
5. Mr.Gobinda Acharya,
Dy. Manager, (Service),
M/s. Godrej & Boyce Mfg. Ltd.,
Appliances Division,
Block GN, Sector V, Salt Lake,
Kolkata 700 091.
6. M/s. Western Airconditioning &
Refrigeration Pvt. Ltd.,
4, Readymoney Terrace,
Dr. Annie Besant Road, Worli, ......Respondent Nos.1 to 6
Mumbai - 400 018. (Org. Opponents)
BEFORE:
Justice S.P. Tavade, President
A.Z.Khwaja, Judicial Member
2 (A/16/445)
For Appellant : Appellant present in person
For Respondent : Advocate Mr.N.D. Jaywant
Nos.1 to 5.
ORDER
Per:A.Z. Khwaja, Judicial Member
1) Appellant Mrs.Asha Anil Gachke has filed the present appeal against the judgment and order dtd.28/01/2016 passed by the Learned Additional District Consumer Disputes Redressal Commission, Mumbai Suburban District feeling aggrieved by the meager compensation awarded by the Learned Additional District Consumer Disputes Redressal Commission, Mumbai Suburban District. (Appellant and respondent shall hereinafter referred by their original nomenclature).
2) Short facts leading to the filing of the appeal may be narrated as under ;
Appellant Mrs.Asha Ail Gachke is resident of Bandra (W) and is practising advocate. Opponent no.1- M/s.Godrej & Boyce Mfg.Ltd., is dealing in the manufacture of electric consumer durables like Refrigerator, Washing Machine, etc. Opponent No.2 is the Regional Office of Opponent no.1. Opponent no.6 M/s. Western Airconditioning & Refrigeration Pvt. Ltd., is the Service Center of Opponent no.1. Complainant has contended that she had purchase one Refrigerator of Godrej Company of 260 Ltr capacity from Vijay Sales, Mahim on 24/08/1997 and the Refrigerator was working without any problems till 2006. On 30/06/2006 one person claiming to be a technician from opponent no.1 came to the house of the complainant and asked for her review report from the complainant. The said technician also told complainant that he will conduct free inspection of the refrigerator and also give a report. Subsequently, the technician gave a report to opponent no.5 and opponent no.5 asked the complainant to enter into one Annual Maintenance Contract for period of 3 years for providing free service. Opponent no.5 told the complainant to change gasket of the refrigerator or else there will be leakage. Opponent no.5 also told the complainant that gasket will be replaced on discount at 50% price. Complainant has contended that relying on the assurance given by opponent no.5, she entered into a maintenance 3 (A/16/445) contract on 30/07/2006 and also paid a sum of Rs.2,161 by cheque drawn on Standard Chartered Bank. Subsequently, the request was made to change the gasket on discount but the technician refused to accept the maintenance contract. Complainant thereafter informed the opponent no.5 regarding maintenance contract and also demanded compensation of Rs.25,000/-. Complainant has alleged that despite the fact that the opponent had entered into maintenance contract on 30 /06/2006 and has also accepted sum of Rs.2,161/-still no cognizance was taken and the gasket was also not replaced due to which the condition of refrigerator was worsened. Complainant tried to get refrigerator repaired through service center but there was no improvement in the condition of refrigerator. Complainant has contended that opponent did not replace the gasket as well as compressor though they had received the amount for same. Complainant has contended that on 25/08/2010 the compressor and gasket has come to be changed. Complainant has contended that she was required to pursue complaints frequently but there was no effect on Opponents. On the other hand opponent no.1 to 6 had taken excessive amount from the complainant towards repairs of the refrigerator and replacement of the parts. Complainant has contended that as such the opponent nos.1 to 6 by not carrying out the repairs as per the maintenance contract and despite the payment of amount, has committed deficiency in service and so the Complainant was constrained to file complaint under the Consumer Protection Act, 1986.
3) After filing of the complaint notice were issued to opponent nos.1 to 5 as well as Opponent no.6 and they have appeared and also resisted the complaint by filing separate written version on record. Opponent nos.1 to 5 has denied that they have committed any deficiency in service. Opponent has admitted that the complainant had purchased one refrigerator in the year 1997. However, Opponent nos.1 to 5 has categorically denied that it has entered into any maintenance contract with the complainant through Opponent no.5. It is contended that there was maintenance contract with complainant and the same had no connection with the purchase of refrigerator by the complainant.
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4) Opponent has contended that there was no contract executed with the complainant. Opponent has also contended that the opponent was not liable to carry out any repairs or replacement as the period of warranty had already expired. Opponent has contended that the amount allegedly taken from the complainant relating to repairs and maintenance was returned to the complainant but complainant has refused to accept the same. Opponent nos.1 to 5 have contended that on the complaint of the Complainant efforts were made to repair the old refrigerator but it was noticed that the refrigerator was beyond repairs. Opponent nos.1 to 5 were no under obligation to repair the refrigerator of the complainant as there was no obligation to do so since the period of warranty was already expired. Complaint filed by the complainant for deficiency in service was not tenable in law and deserved to be dismissed.
5) Opponent no.6 has also filed written version denying that there was deficiency in service on its part. Opponent no.6 has no privity of contract and was not liable at all. For the forgoing reasons opponent no.6 has contended that the complaint filed by the Complainant was not tenable in law and so same deserves to be dismissed with costs.
6) Learned District Consumer Commission, Mumbai recorded the evidence of the Complainant as well as of Opponent nos.1 to 6. Learned District Consumer Commission, Mumbai also went through the documents on record as well as notes of arguments filed by the parties. After appreciating documentary evidence on record, the Learned District Consumer Commission, Mumbai came to be conclusion that opponent nos.1 to 5 had indulged in Deficiency in service as well as unfair trade practice. Learned District Consumer Commission, Mumbai came to the conclusion that since the opponent nos.1 to 5 had not carried out repairs as per the maintenance contract complainant was entitled for refund of Rs.2,161/- paid by the complainant alongwith interest @ 10% p.a. Learned District Consumer Commission, Mumbai also came to the conclusion that the complainant was entitled for the compensation of Rs.15,000/- towards mental and 5 (A/16/445) physical harassment and Rs.5,000/- towards costs of litigation. Aggrieved and dissatisfied by the meager compensation awarded to the complainant/appellant by the judgment and order dtd.28/01/2016 the present Appellant has come up in present Appeal.
7) After filing of the appeal due notices were issued to the respondents and respondents also appeared. We have also heard the Appellant who appeared in person and Advocate for Respondent.
8) Prior to dealing with the main contention raised by the appellant it will be relevant to refer certain undisputed fact. There is no dispute that complainant had purchased one 260 Ltr capacity of refrigerator of Godrej brand from Vijay Sales on 24/08/1997 and same worked properly and without any problem till the year 2006. It is also not in dispute that problems with the refrigerator started in the year 2006 when technician of the opponent inspected the refrigerator. It is contended by the appellant that Opponent no.5 Govind Acharya, Dy. Manager requested the complainant to enter into Annual Maintenance Contract and also assured that proper maintenance will be provided to the refrigerator and the gasket and other parts would also be replaced on discount of 50% price. It is not in disputed that on the basis of assurance given by the opponent no.5, complainant entered into Annual Maintenance Contract for 3 years and also paid sum of Rs.2,161/- by cheque which was also duly realized. It was contended by the Appellant/Complainant that despite entering into maintenance contract, no maintenance was provided and gasket as well as compressor were not replaced on discount of 50% as promised by opponent no.5. Appellant/ Complainant has contended that she was practicing advocate and despite her hectic schedule she was required to approach company from time to time and thereby huge mental harassment was caused to her. During the course of argument appellant/complainant has also drawn our attention to the various documents on record including Annual Maintenance Contract as well as other documents. We do not find it necessary to deal with all the contentions which were raised also 6 (A/16/445) before the Learned District Consumer Commission. It is pertinent to note that the Learned District Consumer Commission elaborately dealt with contention advanced and also come to the conclusion that the Opponent nos.1 to 5 had committed deficiency in service by not repairing refrigerator and not replacing the parts despite the fact that the complainant had entered into Annual Maintenance Contract and had also paid sum of Rs.2,161/-. If we go through the impugned order passed by the Learned District Consumer Commission, the Learned District Consumer Commission has also directed the opponent nos.1 to 5 to refund the amount of Rs.2,161/- taken from the complainant towards Annual Maintenance Contract for period of 3 years. Learned District Consumer Commission had also come to the conclusion that the opponent nos.1 to 5 had committed deficiency in service and had indulged into unfair trade practice. Admittedly, opponent nos.1 to 5 have not come in appeal against the impugned order dtd.28/01/2016 and so we do not find it necessary to go into the said contentions on facts again.
9) Main contention advanced by the appellant in the present case is that the Learned District Consumer Commission has not properly appreciated the fact that the appellant had in fact claimed specific performance of terms of contract dtd.30/07/2016,relating to change of gasket at 50% discount price. Secondly, it is contended by the appellant/complainant that the Learned District Consumer Commission had also not given any relief as prayed against opponent no.6. It is contended by the appellant/complainant that the appellant had specifically claimed that the Opponent no.6 namely Western Airconditioning and Refrigeration Pvt. Ltd. was necessary party in the present dispute and accordingly opponent no.6 came to be added by passing specific order, but despite this fact, the Learned District Consumer Commission had not granted any relief against opponent no.6 though the opponent no.6 was in fact service provider appointed by opponent nos.1 to 5 but not provided any service. However, we will deal with this aspect later. In order to support her main claim the appellant/complainant has drawn our attention to one material document namely the alleged annual service contract which is at page 62 of the compilation. If we go through this document 7 (A/16/445) the same is termed as application form and contains details of the Customers. Opponent nos.1 to 5 have claimed that a maintenance contract was to be filled with by customer and on payment of necessary charges free service was to be provided alongwith replacement of parts. It is seen that the application form is duly signed by the complainant Ashah Gachke and complainant had also paid the necessary fee of Rs.2,161/- by cheque dated 30/07/2006 which had come to be returned by opponent nos.1 to 5. On the basis of this document it is submitted by the Appellant/Complainant that the said Annual Maintenance Contract was for 3 years and as per the terms of the contract, the opponent nos.1 to 5 were under obligation to provide maintenance of refrigerator purchased by the complainant for 3 years. As per the contention of appellant, it was duty of opponent nos.1 to 5 to replace the gasket at a discount of 50% as promised by the opponent and so there was breach of the contract. If we go through the written version filed by the opponent nos.1 to 5, they have categorically denied this fact and submitted that there was no concluded contract with the Appellant/Complainant and so there is no question of compliance with the same. During the course of argument the appellant has drawn our attention specially to the overleaf of the application form were it reads overleaf "the validity of contract starts after 21 days of date of application and ends as per the terms for which the contract is taken."
Learned Advocate for the respondent/opponent nos.1 to 5 have contended that the said application form copy of which is filed on record by the appellant was not signed by any officer of the company and so cannot get converted into concluded contract binding on the company after lapse of 21 days. Respondents/ Opponents have contended that the application form for service contract dtd.30/07/2006 was never accepted and no contract of maintenance was executed to bind the company and so there was no liability on the respondents. Respondents/Opponent nos.1 to 5 have also contended that the application form which was placed on record does not bear any signature of officer of the Respondent Company and same was subject to approval of the complaint and 8 (A/16/445) only after acceptance the maintenance contract can come into existence. On this aspect the Learned Advocate for the Respondent nos.1 to 5 have placed reliance upon series of judgments which are as under -
1. The Solapur District Central Co-op. Bank Ltd. & Anr. V/s. State of Maharashtra & Ors. (reported in 2010(1) ALL MR 164, Bombay High Court Judgment, dated 05/11/2009).
2. Elas Tony Philip V/s. LIC of India and Otheres, (reported in 2009 (1) CPC 220, National Commission, dated 13/02/2008).
3. Executive Engineer, Gosikhurd Dam Division V/s. Hariganga Cement Ltd., (reported in 1900 (NS), para-3, National Commission, dated 22/1/1996).
4. Om Prakash Shashtri V/s. Ashok Leyland Finance Ltd. & Anr. (reported in 2006(2) CPR 200, State Commission, Rajasthan, dated 10/10/2005).
5. M. Narasimbha Reddy V/s. Managing Director, Maruti Udyog Ltd. & Ors., (reported in 1996 CPJ299 (N.C.), National Commission, dated 20/12/1990).
6. K.A. Murugesan V/s. Jaurilal Bafna and another, (reported in 2004 CTJ 1122, State Commission, Tamil Nadu, dated 08/03/2004).
7. K.S. Murugaiyan V/s. S.R. Selvaraj & Anr., (reported in 2006 (2) CPR 444, State Commission, Tamil Nadu State Commission, dtd.14/03/2005).
8. Rathod Laljibhai Ramubhai Mansar V/s. Zalavad Tractors & Ors., (reported in 1996(2) CPR 334, State Commission, Gujarat, dated 07/02/1996).
9. M.S. Malik V/s. The Bombay Garage Ahmedabad Ltd. & Anr., (reported in 1996 (1) CPR 535, State Commission, Gujarat, dated 03/05/1995).
10. Vivek & Co. V/s. Ramesh Chand Luked, (reported in 1996(3) CPR 154, State Commission, Tamil Nadu, dated 05/01/1996).
11. H.M.Sanghavi V/s. Godrej & Boyce Mfg., passed by Maharashtra State Consumer Disputes Redressal Commission, dated 27/06/2008.
12. Atul Virmani V/s. Hotel Hyatt Regency, (reported in 2004 CTJ 749, State Commission, Delhi, dated 24/01/2004).
13.United India Insurance Co.Ltd. and Others V/s. Neeraj Sharda and Others (reported in 2007 CTJ 529, State Commission, Uttaranchal, dated 08/09/2006).
10) We have also carefully gone through these judgments which are placed on 9 (A/16/445) record. The appellant/complainant has strongly rebutted these contentions advanced on behalf of respondents and has pointed out that there is no material to draw inference from the application form on which the signature was taken after. According to the Appellant/complainant, if the offer was not to be accepted then there was no question of directing the signature of the appellant who was the customer at the bottom of the application form and there was also no question of putting the clause of lapse of contract after 21 days of waiting period. We do find force in this contention advanced by Appellant/complainant and the stand taken by the Respondents cannot be accepted. However, the respondent nos.1 to 5 have also taken a pleas that they had not given any undertaking to the appellant in writing to provide the gasket at 50% discount and the said application form issued by the respondent and supplied to the appellant was not binding on them. It is submitted by the Appellant that the application form with attractive phrases written on the same was nothing but gimmicks use by the Respondents/opponents through their marketing department to deceive the consumers. We do find force in this contention. It can be seen that the Learned District Consumer Commission has already given finding that there was deficiency on this count on the part of Respondent nos.1 to 5. During the course of argument the Appellant has also placed on record a series of judgments which are as under -
1. Bharat Petroleum Corpn. Ltd. V/s. Great Eastern Shipping Co. Ltd., (reported in AIR 2008 Supreme Court 357).
2. Tarun Chatterjee and D.K. Jain JJ. (in Civil Appeal No.4829 of 2007) (reported in AIR 2008 Supreme Court 357).
3. Manager, United India Insurance Co. Ltd. V/s. Abbisetti Venkatarao & Ors., (reported in AIR 2008 Andhra Pradesh 8).
4. Taherunnisa Begum V/s. District Collector, Cuddapah District & Anr. (reported in AIR 2008 Andhra Pradesh 11).
5. M/s.Philips Medical Systems (Cleveland) Inc. V/s. M/s. Indian MRI Diagnostic & Research Ltd. & Anr. [Civil Appeal No.2461 of 2006], passed by Hon'ble Supreme Court of India.
6. Bonn Nutrients Pvt. Ltd. V/s. Jagpal Singh Dara (reported in IV(2005) CPJ 108 NC), passed by Hon'ble National Commission, dtd.18/05/2005
7. U.P. Power Corporation Ltd. & Ors. V/s. Anis Ahmad [Civil Appeal No.5466 of 2012], passed by Hon'ble Supreme Court of India.
10 (A/16/445) Apart from the aforesaid cited judgments the Appellant has also placed on reliance upon other judgments but we feel that the judgments relied were not directly applicable to the facts of the present case.
11) Secondly, it is submitted by the appellant that the Learned District Consumer Commission has also committed an error in not granting any relief against opponent no.6 M/s. Western Airconditioning and Refrigeration Pvt. Ltd. despite the fact the opponent no.6 was added as a party by the Learned District Consumer Commission as per order dtd.30/08/2011. It is submitted by the appellant that opponent no.6 was not only necessary party but also was Service provider of the Opponent no.1-M/s.Godrej & Boyce Manufacturing Ltd. Respondent no.6 have categorically denied this contention. It is contended by the Appellant that the Appellant require to incur expenses on account of maintenance as repairs of Refrigerator and recorded bills themselves go to show that the service provider attended the refrigerator and also replaced the compressor but also issued a bill for Rs.5,610/-including the costs of compressor and gasket. Further the service provider has also charged service charges from the Appellant/complainant for carrying out repairs and also for the visit. It appears that the Learned District Consumer Commission had not properly taken this aspect into consideration while deciding the complaint and had absolved the opponent no.6 who was service provider from all liability. Apart from this aspect it is clear that opponent no.6 was also part and parcel of the opponent no.1 company.
12) Lastly, it is contended by the appellant that although Learned District Consumer Commission had not considered the fact that the appellant was subject to great harassment while frequently pursuing the complaint with M/s. Godrej & Boyce Company Ltd. Appellant has contended that she was a practicing Lawyer and she was required to take time out for this purpose and for lodging the complaint. It is contended by the appellant that the Learned District Consumer Commission should have granted exemplary compensation, looking to the fact 11 (A/16/445) that huge expenses incurred by the appellant. On this aspect the appellant has also heavily relied upon one judgment in the case of Bonn Nutrients Pvt. Ltd. V/s. Jagpal Singh Dara in IV(2005) CPJ 108 NC., passed by Hon'ble National Commission, wherein it has been observed that exemplary compensation should be awarded whenever there is Unfair Trade Practice.
We have also gone through the impugned order passed by the Learned District Consumer Commission and we are of the view that the compensation granted of Rs.15,000/- needs to be enhanced by taking into consideration the mental harassment caused to the appellant. Appellant has also prayed for interest @ 21% p.a. Appellant has also placed on record the receipts regarding the expenses incurred of Rs.5,850/- in repairs and we feel that the appellant is clearly entitled for the same.
13) In the light of the aforesaid discussion we feel that there require no interference in findings given by the Learned District Consumer Commission that there was deficiency in service on the part of respondent nos.1 to 5. But we are of this view that there was also deficiency in service on the part of respondent no.6 who was service provider of opponent nos.1 to 5. Further we are also of the view that finding relating to respondent/opponent nos.6 will have to be set aside and the compensation awarded to the appellant will have to be enhanced from Rs.15,000/- to 25,000/-. Accordingly, impugned order dtd.28/01/2016 will have to be modified by allowing appeal and so we passed the following order -
ORDER
1. Appeal is hereby partly allowed.
2. Order passed by the Learned District Consumer Commission, Mumbai in consumer complainant No.CC/43/2011, dated 28/01/2016 is hereby modified as under -
i) Complaint is partly allowed.
ii) It is hereby declared that the respondent nos.1 to 6 have committed deficiency in service as well as unfair trade practice.
12 (A/16/445)
iii) Respondent nos.1 to 6 are hereby jointly and severally directed to refund amount of Rs.2,161/- (Rs. Two Thousand One Hundred Sixty One Only) to the appellant alongwith interest @ 10% p.a. within a period of 3 months.
iv) Opponent no.6 is hereby directed to pay a sum of Rs.5,850/- (Rs.Five Thousand Eight Hundred Fifty Only) alongwith interest @ 9% p.a.
v) Opponent nos.1 to 6 further directed to pay compensation of Rs.25,000/-(Rs.Twenty Five Thousand Only) towards mental and physical harassment and Rs.5,000/- (Rs. Five Thousand Only) towards costs of litigation.
3. Certified copy of this order be furnished to both the parties.
Pronounced on 19th January, 2023.
[Justice S.P.Tavade] President [A.Z. Khwaja] Judicial Member aj