Date of Filing: 09.05.2018

  Date of Order: 02.03.2021

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION – I, HYDERABAD

P r e s e n t

   HON’BLE Smt. P. Kasthuri B.Com, L.L.M,, PRESIDENT(FAC)

HON’BLE Shri  K.RAM MOHAN, B.Sc. M.A L.L.B.,   MEMBER

On this the Tuesday the 2^nd  day, of March 2021

C.C.No. 351/2018

Between        

Shri. Lalatendu Swain, S/o Late Shri. Narasinha Swain,

Aged about 65 years, Indian inhabitant,

R/o: Flat No. 10-A, Shimla Tower (Unit 393),

Hill Country, Nizampet Road, Bachupally,

Hyderabad – 500 090

(Mobile No. 9989779955)

Carrying on Retired Bank Employee Business   

                                                                                                                                             ….Complainant

And

1)  BSH Household Appliance Manufacturing Pvt Ltd,

Having its Registered office at:

Arena House , 2^nd Floor, Main building,

Plot No. 103, Road No. 12, MIDC,

Andheri (East),

Mumbai 400 093.

Rep by authorized person                         

2) BSH Household Appliance Manufacturing Pvt Ltd,

Having its maintenance & Repairs service office at:

Plot No. 149, H.No. 10-1-12/A & 12/C/1(Ground Floor),

Near SBH, Road No.4, West Marredpally,

Hyderabad – 500 026

Rep by authorized person                         
                                                                                             ….Opposite Parties

Counsel for the Complainants                    : PIP

Counsel for the Opposite parties 1 & 2       : Mr. Lanka Jagannadham.

O R D E R

(By Smt. P. Kasthuri B.Com, L.L.M,  PRESIDENT(FAC) on behalf of the Bench)

1.            The case of the Complainant in brief :- The contention of complainant is that he purchased a BOSCH Dishwasher vide model No. SNS69U78EU from CARREFOUR Hypermarket in Dubai, United Arab Emirates on 31^st May 2013  for a sum of AED 4,199/- (United Arab Emirates Dirhams)under  vide purchase receipt No. 424200273002  for which, the opposite party has given  a Telephonic assurance   that the product would be  provided with after sale support regard less of the location  of the point of sale globally. The complainant returned to India in September 2013 and thereafter  the product developed certain faults for which there was a complaint lodged to the opposite party No.2 and the opposite party No.2 took Dishwasher  for repairs on 28.10.2014 and collected Rs. 9310/-  from the complainant in advance and diagnised  the problem  in Dishwasher   as “PCB burnt” (Printed Circuit Board). Subsequently the amount collected from the complainant was retuned stating that despite their best efforts, they were enable to repair the Dishwasher. The complainant then requested the opposite party No.2 to make enquiry  with the principal company in Germany  if they could find any solution and thereafter he contacted the dealer in Dubai on 08.01.2015  and then he personally contacted the opposite parties principals / manufacturer  in  Munich, Germany  on 08.01.2015 requesting  them to either get the machine repaired  or replace  with a model that could be serviced  in India. Basing on which, the opposite parties Germany principal  referred  the issue to the opposite party’s  registered office  in Mumbai (Opposite party No.1), even than there was no progress.  The complainant again reminded the matter to Mumbai office / Opposite party NO.1 but they gave the same reply stating that “ we made attempts to rectify  the problem  with equalent / suitable spare parts but could not succeed since it was purchased outside India and was not sure to provide  any confirmation on the spares available in India and the performance of the unit after repair (If done by us on basis) as the unity was not sold by the company in India”    

                     Further , after several remainders to the opposite parties principals (Manufacture Robert BOSCH GMBH) Munich, Germany , the complainant  was informed  by the opposite parties customer relation i.e, opposite party No.2 was arranging the required parts and the Dishwasher   would be taken for repairs. Thereafter  there was no  correspondence  and no development was shown as such, the complainant again contacted  the opposite parties principals ( Robert BOSCH) Germany  on 14 October 2015 stating “as the opposite party’s company could not repair the newly  purchased product since  a year  he advised  them that he was ready to donate the product / Dishwasher to the Museum of opposite party’s choice”. The  complainant submitted that these words must have Pinched the opposite party’s Germany  principles  and within 6 days of this message , he received a confirmation  from the opposite party No.2 on 28.10.2015 stating that the machine was repaired  and was ready for delivery and the cost estimation  of  Rs. 21,176/- towards repairs and also to pay towards sent the to an fro  transportation charges was to be paid.  The complainant informed  to the opposite parties that since there was inadinate  delay  for one year in repairing the machine , they should either replace it with a new machine  which could be  serviced  in India  or waive  all the discounted costs of repairs. As there was no response  from Opposite parties No.1 and 2, he made a representation to the opposite party’s Germany principles and also to the Chairman and CEO of opposite party German principle’s for which the replay came from Indian counter part / Opposite party No.1 and 2 stating that 40 % discount  was already applied to the costs of repairs as gesture  of good will and expressed inability to do anything further. The last correspondence  was received from the opposite party No.1 DGM service  in Mumbai on 12-May-2016. The complainant submitted that since the machine was lying with the opposite party’s service center ever since  it was taken for repairs and the present condition  of the machine was not known and having doubts on the capacity of the opposite party’s in India to provide satisfactory service in future, the complainant demanded for a new dishwasher which could be repaired in India or waive of the  cost of repairs  the complainant contended that the opposite parties  are liable for breach of contract as their Dubai counter parts have sold him a defective machine  and failed to provide the world wide support and after sale service that was assured  to him at the time of the  purchase. They have not complied to the problems  of after sale service  guarantee and were extremely negligent in attending to the complaints made by him. Hence, he filed the present complaint.         

 Version of opposite party in brief:-

2.            The opposite parties No.1 & 2 submitted that they are primarily engaged  in the business  of manufacturing Home Appliance  and have its registered office is in India  at 2^nd Floor, Arena house , main building Flat No. 103 , Road No. 12 MIDC, Andheri East, Mumbai. They contended that the present complaint is not maintainable on the ground of  territorial jurisdiction as  the complainant  has purchased the product / Dishwasher  from Dubai was the year 2013 and initially  used the said product  in Dubai. The product sold in Dubai is manufactured  as per the usage in that area  and even the spare parts  of the same were not available in India. The opposite party  also submitted that there is no privity of contract  between them and the complainant since the product was not sold by them. The opposite parties  also submitted that the complaint is based by limitation as  the product was purchased from Dubai on 31.05.2013  and the warrantee of the same was expired in the year  2014 and the first complaint lodged with them was on 29.09.2014 and the last complaint was  made on 20.10.2015 after which, the product was rectified and the same  was informed to the complainant vide Email dt. 22.03.2016. Hence, the cause of action latest aroused on 22.03.2016 whereas the complaint was filed  in September 2018, by the said date 2 years of limitation period  was lapsed which is contrary  to the provision of Section 24A which provides  that complaint should be filed within 2  years of cause of action  i.e, the complaint should have been filed by 21.03.2018, whereas the same was filed in September 2018. The opposite parties further submitted

that the complaint was liable to be dismissed  on the ground of misjoinder and nonjoinder of  necessary parties, as the product Dishwasher  was purchased in Dubai by the complainant Dubai and failed to make the manufacturer and the dealer  as parties to the present proceedings. The opposite parties further submitted that they have taken all necessary steps for resolving the problem of the complainant and have tried their best to solve the issue but despite several attempts,  the same could not be rectified and nothing was charged from the complainant for the said repairs. Thereafter, in the month of October 2015, as a gesture of good will to help the complainant, the opposite parties picked the product / Dishwasher   from the premises of the complainant and took all bonafied steps to procure the spare parts  from BOSCH at Dubai as the spare parts were to be procured  from outside India  and took considerable time for replacement of certain spare parts and the complainant was informed regarding the same and the cost estimation was also given to the complainant but he turned greedy and demanded for free of cost repairs and thereafter stopped responding . Hence, submitted that there was no deficiency in service  on their part and prayed to dismiss the complaint against  them.

3.       The opposite parties relied  on certain Judgments which are mentioned herein :-On the point of limitation, he relied on the Judgment of Hon’ble SC in Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd & Anr (2009) CPJ 72 (SC)

Further on the point of manufacturing defect and expert opinion, the opposite parties relied on the judgments of National Commission :-

1. Tata Eng. And Locomotive Co. Ltd Vs. Sunil Bhasin II (2008) CPJ 111 NC.
2. STPL (Web) 2032 NC [ 2014(3) CPR 670 (NC)] RAKESH KUMAR VERSUS PARKSHIT TRACTORS .,

In the enquiry, the Complainant has filed his Evidence affidavit  and got marked Ex.A1 to A16 in support of his case. The opposite parties No.1 & 2 also field their evidence affidavit  and  no documents were marked on their behalf. Both parties have filed their written arguments.

Heard the oral submission both parties and perused the material on record.

4.Points for consideration

1. Whether this commission has jurisdiction to try the case.?
2. Whether the compliant filed is within the limitation period.?
3. Whether the complaint is bad for misjoinder / Non-joinder of parties.?
4. Whether the three is deficiency in service / unfair trade practice  on the part of the opposite parties.?
5. If, so to what relief.?

5.Point No.1 to 3:-

Firstly taking into consideration, the preliminary objection of the opposite parties  on territorial jurisdiction.

               It is an admitted fact  that the complainant has purchased a BOSCH Dishwasher   from the dealer in Dubai and was made use of the said product initially in Dubai and later after shifting to India it was made use of it in India. The said product was sold with an assurance that it would be provided with worldwide services as evidenced under Ex.A17. Therefore it indicates that the product can be used anywhere in the world and can avail services of BOSCH company from anywhere in the world having its branches spread all over the world. The complainant has filed the complaint alleging deficiency in service in Hyderabad in India.  The Registered office of opposite parties in India is also shown on the second page of Ex.A17. Therefore this Commission has territorial jurisdiction to try the complaint filed by the complainant.

               Considering the second objection on the point of limitation period, we observe that the opposite parties in their written version and written arguments  has specifically  stated that the complainant  has purchased the product from Dubai on 31.05.2013 and the warranty of the same  was expired by May 2014. After that, the complainant having moved to India  has raised the first complaint with them in India  on 29.09.2014 and the last complaint was made on 20.10.2015 after which , the product was rectified and the same was informed to the complainant vide Email dt. 22.03.2016 to take a delivery  of the unit. As such, the cause of action  latest aroused on 22.03.2016  but the complaint was filed in September 2018 which is beyond  the limitation period. As borne from the record, according to Ex.A14, the last email  sent by opposite parties to the complainant was on 12.05.2016 for taking delivery  of the unit but the complainant has not taken the delivery of the product. That is to say the product was yet to be delivered to the complainant. Therefore, as the dishwasher remained with the opposite parties till date, the cause of action  continuous to run for the complainant.

               The next point to be considered is whether the complaint filed by the complainant is bad for Non-joinder of necessary party. The opposite parties under Ex.A14 has clearly mentioned in the last para stating “ Kindly note that you being in India  this matter would be completely handled by the Indian office” .

In view of the above statement of opposite parties, the complainant residing in India can seek remedy for his grievances only from opposite parties in India and not from the Dubai / Germany Company. Hence we find that the complainant  has filed the complaint against the proper party. Point No.1 to 3 are answered accordingly.

6.Point No.4:-

Now discussing on the point as to where there is any deficiency in service on the part of the opposite parties.

               On perusal of the pleadings , the documents on record and the submissions made by both parties , it is observed that the complainant admittedly having resided in Dubai for some time  had purchased a Dishwasher of BOSCH make vide invoice No. 424200273002 dt. 31.05.2013 from its authorized dealer in Dubai. Thereafter, he got shifted to India and the product while usage in India gave trouble for which, the instrument / Dishwasher was given  to the opposite parties for repairs. Ex.A3 is job card issued by opposite parties stating in it that “PCB  burnt” (Printed Circuit Board) and sent an estimation  of Rs. 9310/- towards effecting repairs. The complainant has issued a cheque  for  the said amount as evidence under Ex.A4. Thereafter, the opposite party  has sent an Email under Ex.A5 and Ex.A7 stating their inability to effect the repairs in spite of several attempts  for rectification and also expressed their doubt in succeeding to fix the problem  in future as the product was purchased  from outside India and was not suitable to Indian conditions and returned the cheque of Rs. 9310/- to the complainant. The complainant admitted the return of cheque of Rs. 9310/- in  his complaint. Thereafter, there was lot of correspondence exchanged between the complainant and the BOSCH company in Germany, the CEO in Dubai and with its counter part in India. The same is evidenced under Ex.A5 to Ex.A14. The opposite parties has however finally got the product repaired  after a period  of one year of  lengthy correspondence  and requested the complainant to take the  delivery of the  product  as seen from Ex.A10 but the complainant refused to take back the product  with an apprehension that the product as of now has taken more than a year to get it rectified and if in future  such similar problem arises what would be his position and requested the opposite parties to either waive the repair costs  or to provide him with a new product. The opposite parties for which, they have expressed their inability to offer a new Dishwasher or waive off the repair charges as evidenced from Ex.A14. After the purchase of the Dishwasher in Dubai on 31.05.2013, complainant has made use of it in Dubai for some time and after return to India he continued to use the product and the first complaint raised with the opposite parties as to malfunction of the unit was only on 29.09.2014 that means the product  has worked to the satisfaction  of complainant for more than  year. During the warranty period of one year i.e, from 31.05.2013 to 30.05.2014, there was no problem raised by the complainant and further after the warranty period,  the product gave trouble  not because of any inherent defect or any manufacturing  defect  in the product. The complainant has not filed any document showing that the product  suffered from any manufacturing  defect for demanding  the opposite parties  for replacement  of the unit. The product in fact was found  to be “ PCB burnt” ( Printed Circuit Board ) as mentioned  in Ex. A3.  The said document also shows that the reason for “PCB burnt” (Printed Circuit Board) was  due to the problem  of power supply  at customers place”. Hence, the relief prayed  for replacement of the product or refund of the price of the product cannot be granted. The opposite parties however having assured to provide worldwide services as evidenced under Ex.A17.  Prompt services should have been provided but there was a lot of delay in giving services to the complainant. The complainant got the repairs done only after long persistent follow-ups and correspondence with the opposite parties in India and the principals / manufactures in Munich, Germany. The complainant was deprived of the use of Dishwasher for quite a long time having assured with worldwide services. Hence, there is deficiency in service on the part of the opposite parties.  In the said circumstances of the case, the complainant must have definitely  subjected to  severe mental agony and trauma. Hence based on the discussion held above  and in view of the Dishwasher remained in the possession of  opposite parties, we allow the complaint in part and direct  the opposite party to return  the Dishwasher to the complainant in a working condition  after effecting the updated repairs if any by collecting from the complainant the necessary discounted  charges of   Rs. 21,170/- (as shown in page 2 of Ex.A10)  incurred towards effecting  repairs and also to collect the expenses  to be incurred towards the to and fro of the  transportation charges, as the product is out of warranty. The opposite parties are directed to pay a sum of Rs. 30,000/- (Rupees thirty thousand only) towards damages  for depriving the complainant of making use of the Dishwasher for a long time having offered to provide worldwide services under Ex.A17 and to pay a sum of Rs. 20,000/- (Rupees Twenty thousand only) towards compensation for the mental  agony and trauma undergone by the complainant. Point No.4 is answered accordingly in favour of the complainant.

7. Point No.5 :-

In the result, the complaint is allowed in part and  direct the opposite parties :

1. to return the Dishwasher to the complainant in a working condition after effecting the updated repairs if any by collecting from the complainant the necessary discounted charges of   Rs. 21,170/- (as shown in page 2 of Ex.A10) incurred towards effecting  repairs and also to collect the expenses  to be incurred towards the to and fro transportation costs as the product is out of warranty.
2.  to pay a sum of Rs. 30,000/- (Rupees thirty thousand only) towards damages  for depriving the complainant of making use of the Dishwasher for a long time having offered to provide worldwide services under Ex.A17 and
3.  to pay a sum of Rs. 20,000/- (Rupees Twenty thousand only) towards compensation for the mental  agony and trauma undergone by the complainant.
4. to pay a sum of Rs. 10,000/-(Rupees ten thousand only) costs of the litigation.

The opposite parties can however adjust the amount to be paid by the complainant and pay the balance amount to the complainant.

Time for compliance : 40 days

In case of the Noncompliance of order, the  opposite parties shall pay interest @9% p.a on Rs. 30,000/- (Rupees thirty thousand only)  from the date of default till the date of realization.

      Dictated to steno, transcribed and typed by him, pronounced by us on this the 2^nd  day of  March, 2021.

   MEMBER                                                                                        PRESIDENT

APPENDIX OF EVIDENCE

WITNESS EXAMINED

NIL

Exhibits filed on behalf of the Complainant:

Ex.A1 -  Copy of  UAE Dirham-India Rupee  Conversion Rate  dt. 20.07.2018.

Ex.A2 -  Copy of  proof of purchase  :MAF Hypermarkets LLC Invoice No. 424200273002
            dt. 31.05.2013.

Ex.A3 -  Copy of  BSH Household Appliance Mfg PVt Ltd retail Invoice No. 474236050 dt.
            05.11.2014.

Ex.A4 -  Copy of Cheque No. 663791 dt. 05.11.2014. drawn on ICICI Bank Ltd favoring
            BSH household appliance Mfg Pvt Ltd. 

Ex.A5 -  Copy of  Email from Manager, Bosch service center, Hyderabad confirming
              absence of policy to provide after sales service globally dt. 11.05.2015.

Ex.A6 -  Copy of  Complaint lodged online with Bosch, Head office , Munich, Germany,
             Customer service  Helpline dt. 18.01.2015.

Ex.A7 -  Copy of  Email fro the manager, Bosch service center, Hyderabad  confirming
              their failure to repair the Dishwasher dt. 11.05.2015.

Ex.A8 -  Copy of  Email  from Head Customer relations of Bosch, India  advising  expected
            arrival of required spares dt. 02.07.2015.

Ex.A9 -  Copy of  Email to Corporate Communications Dept Bosch  Germany offering to
            donate the Dishwasher to a museum of their choice.   dt. 14.10.2015

Ex.A10 -  Copy of  Bosch service center  Hyderabad dt. 20.10.2015.

Ex.A11 -  Copy of  Email  to the General Manger, Customer service of Bosch, India
               protesting the delayed repairs/service of Dishwasher dt. 26.01.2016.

Ex.A12 -  Copy of  Email to the General Manager, customer service  of Bosch, India
              protesting the delayed repairs / service of Dishwasher dt. 25.01.2016.

Ex.A13 -  Copy of Email to Chairman and CEO f Bosch, Germany requesting replacement
              of /Waiver of cost of repairs to dishwasher dt. 10.05.2016.

Ex.A14 -  Copy of  email to DGM, service Bosch, India claiming dt. 12.05.2016.

Ex.A15 -  Copy of  Lawyer notice sent to OP1 and Op2 dt. 11.05.2018.

Ex.A16 -  Copy of poof of dispatch of Lawyer’s notice and Acknowledgment by OP1 dt.

Exhibits filed on behalf of the Opposite party :

Nil.

MEMBER                                                                                             PRESIDENT