CONSUMER DISPUTES REDRESSAL FORUM-II
GOVERNMENT OF NCT OF DELHI
Udyog Sadan, C-22 & 23 Institutional Area,
Behind Qutab Hotel, New Delhi-110 016
Case No. 580/06
Professor (Dr.) M.P. Srivastava
175, Munirka Vihar,
Opp. J.N.U, New Delhi.
……….Complainant
Versus
1. Whirlpool of India Ltd.
Vaitalik, 456 Road,
Qutab Institutional Area
New Delhi-67 ……Opposite Party No. 1
2. Narang Electronics
517, FIE Patparganj,
New Delhi ……. Opposite Party No. 2
Date of Institution: 04.10.2006
Date of Order : 30.12.2009
V.K. Gupta, President
O R D E R
This is a complaint under section 12 of the Consumer Protection Act, 1986.
The brief facts of the case are that the Complainant purchased a Whirlpool Refrigerator 350 L JC-3885990 on 19.6.2003 for Rs.21,500/- from the O.P. No.2. It was assured by the O.P. No.2 that it was a quality product and fully assured the Complainant that the Refrigerator was manufactured by the O.P. No.1 O.P. No.1 also assured the Complainant that the warranty of the Refrigerator would governed for a period of 7 years from the date of purchase which includes everything i.e. compressor etc. On 21.3.2004, the Refrigerator went out of order and complaint was lodged on 23.3.2004 whereupon Mr. Balkishan, Whirlpool, Engineer inspected the refrigerator and reported that the compressor is defective and needs replacement but it was not done. On 30.6.2006 again the said refrigerator went out of order and a report was lodged whereupon the complaint was attended by Mr. Deepak who insisted for the change of stabilizer and found that fault is some where else. Again on 16.7.2007 when a complaint was lodged, Mr. Hemant Kumar from Whirlpool Service Centre attended and found that there is no fault with the stabilizer but the compressor is defective and needs immediate change and asked to pay Rs.1340/-. On 17.7.2006, 21.7.2006, 28.7.2006 the said refrigerator was defected was defective and the complaint was lodged with the O.P. on these occasions. On 31.7.2006, the Complainant lodged a complaint with the O.P. whereupon Mr. Shahid visited and charge Rs.730/- for replacing some modules. There is inherent defect in the refrigerator supplied to the complainant and he suffering mental torture and harassment. The Complainant prays for the refund of Rs.21,500/- together with interest @24% per annum from the date of the purchase of the refrigerator till the date of the realization and also Rs.3750/- paid on various dates to the employees of the O.P. who inspected the refrigerator also an amount of Rs,.20,000/- as compensation and the litigation charges.
The O.P. No.1 has filed written statement and denied all the allegations. It contended that the refrigerator is covered under one year comprehensive warranty and thereafter O.P.1 will provide the facility of optional service contract for a further period of six years for sealed system. In para no.4 of the written statement O.P.1 has admitted that it is still ready to inspect the refrigerator and to set right the same under the terms of warranty. The Complainant has not specified any manufacturing defect in the refrigerator nor claimed that the alleged defect in the refrigerator is not rectified and nor filed any documentary evidence by him in support of his allegations. The refrigerator is more than under the warranty period and the details of the warranty has already reproduced in the written statement and O.P. 1 is under obligation to provide after sale service as per terms of the warranty. Complainant is not entitled to claim any relief.
O.P. No.2 has not filed written statement and the case was proceeded ex-parte against O.P. No.2 vide order dated 8.1.2007.
We have heard learned counsels for both the parties and perused the material on record.
At the outset, Ld. Counsel for the O.P.1 very vehemently submitted that the Complainant has utterly failed to show by the oral and the documentary evidence that there is a manufacturing defect and also that complainant suffered mental agony and loss. This argument is devoid of all force. It may be submitted that Consumer Protection Act, 1986 is the benevolent piece of legislature and the standard of proof required is nothing more than what is required to prove the hardship caused to the consumer which comes through very clearly on the perusal of the case, mental agony and the loss that he had to undergo. It may be reiterated here that standard of proof by the Complainant under Consumer Protection Act, 1986 is not covered by the Indian Evidence Act.
In this case it has been admitted by both the parties that the Complainant has purchased refrigerator from the O.P.1 and paid Rs.23,625/- for which invoice annexure(A) is filed by the complainant. This has not been denied by the O.P.1 nor by O.P.2 that the said refrigerator was not purchased by the Complainant after paying the aforesaid price. The only contention raised by the Ld. Counsel for the O.P.1 that the refrigerator purchased by the Complainant from the O.P. does not suffer from any manufacturing defect. The Complainant has filed various papers which have not been denied by O.P.1. On 21.3.2004 i.e. before the expiry of one year for the purchase of the refrigerator, it went out of order for which Complainant lodged his first complaint on 23.3.2004 whereupon one Mr. Balkishan employee of the O.P. inspected the refrigerator and reported that the compressor is defective and needs replacement and the complaint was also lodged by Complainant who purchased the refrigerator but the defects have not been removed and again refrigerator was out of order. On 30.6.2006, Complainant lodged the complaint with the Whirlpool of India whereupon one Mr. Deepak attended the complaint and insisted the change of stabilizer and it was suggested by the Complainant that the stabilizer did not require any replacement. However, it was changed, and Complainant was charged Rs.1685/- but again on 16.7.2006 the said refrigerator was went out of order whereupon Mr. Hemant Kumar attended the complaint and found that there was no fault of stabilizer and compressor was defective and the Complainant was charged a sum of Rs.1340/- as the cost of the accessories. However, on 17.7.2005 the compressor was changed. On 21.7.2006, the refrigerator went out of order for which as usual complainant lodged the complaint with the O.P. and it remained unattended from 24.7.2006 to 27.7.2006 despite various reminders to the O.P. On 28.7.2006 one Mr. Shahid inspected the refrigerator and charged Rs.400/- to replace the stabilizer. Despite all the repairs and the replacement, the Engineer who have attended the complaint each time hereinabove mentioned has not been able to identify the fault of the refrigerator and they have not pointed out for its functioning. The net result is that the refrigerator purchased by the Complainant from the O.P. against the payment of over Rs.20,000/- was defective.
It is amply proved that the refrigerator purchased by the Complainant from the O.P. suffers from the inherent manufacturing defect. It is pertinent to point out that this defect is actually incurable defect and can not be rectified by merely replacing of one part or the other in refrigerator. It would be relevant to mention here that the O.P.1 in its reply has admitted that it is willing to replace the defective parts of the refrigerator. Despite many opportunities given by the Complainant to the O.P. to replace the part of the refrigerator, the Complainant has each time found no response. The request was made by making payment of the consideration as has been admitted from time to time. However, all the efforts have proved to be in vain. Therefore, there is no guarantee that any further replacement would clear the problem and the only irresistible conclusion is that there is inherent manufacturing defect.
The Complainant is a consumer within the meaning and the ambit of section 2(1)(d) of the Consumer Protection Act, 1986. Since the refrigerator was purchased by the Complainant for his personal use and the Ld. Counsel for the O.P. has utterly failed to show as to how and in what manner Complainant is not the consumer.
It is a settled position of the law that when a refrigerator is purchased and it required change in the compressor within a period of 2 months and lock in the cooling system which might occur any time again for such refrigerator can not be said to be a sound refrigerator since it has suffered from inherent lock. Even in this case the compressor was found to be defective and was replaced also the refrigerator was sold within the warranty, there is a sheer deficiency on the part of the O.P. and we must hold that the O.P.has supplied the defective piece of the refrigerator.
It has been held in the Hon’ble Supreme Court in Jose Philip Mampillil Ltd. Versus Premier Automobiles Ltd. & Anr. (2004) CPJ 9 (SC) that when the car was defective at the time of delivery proved, dealer and manufacturer are jointly liable for compensation and cost.
In case of K.E. Moses (Dr.) Versus M.T.N.L. I (2006) CPJ 448 by Delhi State Consumer Disputes Redressal Commission has held if the defective part were replaced five times which manifestly demonstrates deficiency in service on part of O.P. and Complainant suffered mental and professional agony, compensation and cost should be awarded.
The Complainant has paid Rs.21,500/- to the O.P. as the sole consideration of the said refrigerator. The Complainant has also filed various receipts of the payment for Rs. 3750/- made to the employees of the O.P. on various occasions. This goes to show that the O.P. have remained negligent in performing their duties sincerely as a result of which Complainant has suffered a great mental agony even after spending an amount of Rs.21,500/-, Complainant could not use and obtain the fruits of the refrigerators.
In this regard, the observations of the Hon’ble Supreme Court made in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 are quote worthy and are as under :-
“The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.”
Taking into consideration of the facts and circumstances of the case, we quantify the amount of the compensation as Rs.15,000/- for mental agony, harassment and sheer suffering including the litigation charges.
We hereby direct that :-
1. the O.P. shall refund Rs.21,500/- together with interest @12% per annum from the date of the purchase of the refrigerator till the realization.
2. the O.P. shall also refund Rs.3750/- which were paid by the Complainant to the employees of the O.P.
3. In addition to above, the O.P. shall also pay Rs.15,000/- as compensation on the mental agony, harassment and sheering suffering including the litigation cost.
This shall be complied within 30 days.
Copy of this order be sent to both the parties as per rule.
(S.C. KAUSHIK) (V.K. GUPTA)
MEMBER PRESIDENT