Oral Order: (B.N. Rao Nalla, President)

This is an appeal filed by the Opposite parties aggrieved by the orders of District Consumer Forum-III, Hyderabad dated 03.06.2014 made in CC No.192 of 2013 in allowing the complaint and directing them jointly and severally to pay the complainant a sum of Rs.30,000/- towards the purchase price of a new product and compensation of Rs.20,000/- for the damage suffered further directing the Complainant to return the subject refrigerator to the Opposite parties upon receiving payment, with costs of Rs.2,000/- granting time of 30 days. On failure to comply, it shall carry interest @ 9% p.a. on the awarded amount from 05.07.2014 till realisation.

2) For the sake of convenience, the parties are referred to as arrayed in the complaint.

3) The case of the complainant, in brief, is that he used ‘Godrej’ refrigerator over long period of 24 years, hardly without any problem and not even a requirement to change the gas or compressor, which necessitated him to purchase Godrej brand only though there were many international brands in the market, with an expectation that the improved technology of the Godrej brand will give much better trouble free performance. Accordingly, he had purchased a new refrigerator bearing model GFE 32B metallic champagne colour on 28.06.2007 and was shocked to see it developed cracks on sides within few days reflecting the present ‘quality’ of the Godrej brand goods.

4) OP No.2 is branch of OP No.1, made the Complainant to make many trips to its office and only after issuance of notice dated 25.09.2008, prevailed upon the complainant to take a high end model GFE 36Z BB BERRY blue colour by paying additional amount as the same cannot be replaced due to non-availability of said model, which is nothing but a purchase of new unit. The new refrigerator started giving trouble within 20 months of its delivery in October 2008. It failed to give cooling resulting in damage to the products causing loss to complainant. On complaint in June 2010, Ops stated that during transportation gas may get leaked, for which, made the complainant to pay Rs.1,250/- on 22.06.2010 assuring such problem will not arise again.

5) Again, after two years, the same problem recurred in April/May 2012 resulting in improper and ineffective cooling. On complaining for numerous times, one person from Srujana Enterprises came to attend the problem on 23.05.2012 realised that there is a problem of gas leakage but failed to locate the same but stated it to be manufacturing defect and demanded for payment of Rs.1500/- to fill the gas and left without solving the problem. However, OP2 sent the technician on 29.05.2012 but of no avail who replaced the compressor. Within 10 days thereafter, the problem surfaced again. The cooling was improper and very low due to which no ice formed in the freezer and there was no cooling.

6) The supply of faulty refrigerator and inability to find the source of leakage and that complainant is not allowing to repair is very unfair and not suitable for a reputed company like Godrej. The additional warranty is of 4 years after initial comprehensive warranty for first year and the warranty is till October 2013. It is a common fact the refrigerators would work for many years without need of gas filling, not atleast within 2 years as happened with the complainant’s refrigerator, which is a manufacturing defect. Complainant lost the opportunity of utilizing the refrigerator. Hence, complainant is entitled for the cost of the replacement and also for damages.

7) The complainant got issued notices dated 10.07.2012, 13.08.2012 and on 15.11.2012 but there was no response. To which, it gave false reply on 19.08.2012 Hence the complaint praying to direct the Ops to pay Rs.31,000/- being the value of refrigerator of same configuration as replacement value, to pay damages of Rs.35,000/- for causing mental agony, to pay Rs.6,000/- towards legal charges and costs of the proceeding.

8) Opposite parties resisted the claim on the premise that complaint is frivolous and there are no allegations of deficiency in service admitting the purchase of new refrigerator. As per terms of warranty, only one year warranty for the entire refrigerator against manufacturing defects which excludes plastic parts and electrical accessories with four year warranty on the compressor alone. Though there was considerable damage, they replaced the unit with a new one without disputing it as the crack might have been developed for various reasons. For the complaint received in May & June 2010, it was resolved to the best satisfaction of the complainant.

9) During the period of warranty, complainant made complaint of slowing down of cooling and ice was not being formed. When a senior technician was deputed, complainant was not allowing them to investigate the problem. In case of any problem with compressor, the same will be replaced or repaired without any cost within the period of warranty. The complainant could have allowed their technicians to attend the repairs and get the refrigerator in working condition.

10) Exercise of the right under the agreement cannot be construed as a deficiency in service. Having failed to adhere to the terms and conditions of the contractual obligations, complainant cannot take advantage of his own wrong doing and get illegal gains for no fault of the opposite parties. Hence, prayed to dismiss the complaint directing the complainant to allow the Ops to attend his refrigerator and ensure that the same is kept in satisfactory working condition.

11) During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed his evidence affidavit and Exs.A1 to A18 and on behalf of the Ops, got filed the evidence affidavit of one N.Badhari Nadhu, their authorized representative got filed the evidence affidavit and the document Ex.B1.

12) The District Forum after considering the material available on record, allowed the complaint bearing CC No.192/2013 by orders dated 03.06.2014, as stated, supra, at paragraph no.1.

13) Aggrieved by the above orders, the Appellants/Opposite parties preferred the above appeal contending that forum below (a) erred in awarding Rs.30,000/- towards purchase price and compensation of Rs.20,000/-; (b) erred in observing that respondent had paid Rs.1500/- and Rs.1250/- towards gas filling charges under Ex.A3 to A5 as against Rs.1,250/-; (c) erred in arriving at the cost of other refrigerator of similar capacity and quality as Rs.30,000/- without any basis; (d) failed to see that the complainant used the refrigerator for about 7 years and thereby erred in awarding damages; (e) failed to see that the refrigerator was replaced with brand new one. Hence prayed to allow the appeal and set aside the orders impugned.

14) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?

15) It is not in dispute that the Respondent purchased the refrigerator from the shop of OP No.2 under exchange offer, for Rs.16,700/- on 28.06.2007. It is also not in dispute that the existing refrigerator was replaced with new one on 10.10.2008 by collecting the difference amount of Rs.1500/-. It is also not in dispute that on 22.06.2010 the Ops collected Rs.1250/- for gas filling.

16) The only dispute is that there is persisting problem of non-cooling and non-formation of ice in the refrigerator, which is causing loss to the consumer. As can be seen from (Ex.A6 to A8) issuance of notices dated 10.07.2012, 13.08.2012, 15.11.2012 and the e-mails (Ex.A15 to A18) dated 25.05.2012, 09.06.2012, 19.06.2012 and 12.09.2012, it is evident that the Respondent had been complaining the same time and again but with a request to refund the cost of the appliance. To all the notices and e-mails got issued by the Respondent, the Appellants responded under Ex.A10 to A14 promptly informing that they are ready to attend the repairs but are unable to comply with the demand for refund.

17) Admittedly, the Respondent had almost used the refrigerator in question for about 4 years by the time he complained low-cooling and non-formation of ice in the year 2012, which is not in denial. The problem in the refrigerator is also not denied, however, there is a gas leakage problem, which can be rectified by proper repairs but not an inherent manufacturing defect. No evidence is placed on record to show that it is a manufacturing defect. The counsel for the Appellants would contend that the difference between the first refrigerator and the replaced refrigerator is Rs.1,689.86, however, the appellants collected only Rs.1500/-. Altogether, the Respondent paid an amount of Rs.16,700/- + Rs.1500/- towards the cost of the refrigerator and had put the same

for use nearly for about five years. In spite of offering their services, it is the Respondent who had chosen for refund of the cost of the unit. As such, awarding the sum of Rs.30,000/- towards the cost of the new product under any circumstance is unwarranted in view of granting compensation. In the circumstances, we are inclined to allow the appeal in part and modify the orders of the forum below by setting aside the award of Rs.30,000/- towards purchase price of a new product and confirm the order in rest of the aspects and we answer the point framed at paragraph No.12, stated supra, accordingly. 18) In the result, we allow the appeal in part and modify the orders dated 03.06.2014 passed in CC No.192/2013, by the District Consumer Forum-III, Hyderabad by setting aside the award of Rs.30,000/- in so far as purchase price of a new product is concerned and confirm the order in rest of the aspects. In the circumstances, parties to bear their own costs. Time for compliance : four weeks.