Haryana

Ambala

CC/439/2017

Om Bikaner Misthan Bhandar - Complainant(s)

Versus

AAR-KAY Enterprises - Opp.Party(s)

Jai Ram Dass

15 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case No.:  439 of 2017.

                                                          Date of Institution         :  13.12.2017.

                                                          Date of decision   :  15.07.2019.

 

1. Om Bikaner Misthan Bhandar, Klait, Distt. Kaithal, Haryana through its Proprietor Mehtab Singh aged 44 years son of Sh. Mangu Ram son of Sh. Matu Ram, resident of village Kalayat, Tehsil Kalayat, Distt. Kaithal.
2. Mehtab Singh aged 44 years son of Sh. Mangu Ram son of Sh. Matu Ram, resident of village Kalayat, Tehsil Kalayat, Distt. Kaithal Proprietor of Om Bikaner Misthan Bhandar, Kalayat, Distt. Kaithal.

……. Complainants.

                                                Versus

 

1. AAR-KAY Enterprises, having its head office at 46, Nishant Bagh, Behind B.D. Flour Mill, Ambala Cantt. through its proprietor.
2. Voltas House, A Block, Doctor Baba Sahib Ambedkar Road, Chint Pokla, Mumbai through its Chairperson.

     ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Yogesh Kumar Pal, Advocate, counsel for complainant.

Shri Sandeep Kashyap, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund Rs.33,800/- alongwith interest @18% per annum.
2. To pay Rs.60,000/- as compensation on account of mental agony and physical harassment suffered by the him
3. To pay litigation charges.
   382.  

                   Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant No.2 is the owner of the Om Bikaner Misthan Bhandar and is running the said shop for earning his livelihood. The complainant No.1 had purchased a refrigerator Model No.VISI Cooler, 425 liter S.R. No.54105680A152000841 from the OP No.1 vide bill dated No.400 dated 29.03.2016 for a sum of Rs.33,800/-. On 09.04.2016, the said refrigerator stopped functioning and a complaint was lodged with the OP No.2 on its toll free number, vide complaint No.16040907373. After 5-6 days, the engineers of OP No.2 came and on checking, found that due to faulty condenser, the gas was leaked. The said engineers filled up the gas and repaired the same and went away. The complainant No.2, stored eatable items in the refrigerator, but next day, found that refrigerator was not working and all the eatable items got stale. On 15.04.2016, he again lodged the complaint on the toll free of the OP No.2 and the engineers of the OP No.2 came on 17.04.2016 and again checked the refrigerator and found the condenser defective. The said engineers had taken the condenser with them and told the complainant No.2 that they will fit a new condenser within 2-3 days after getting the same from the company. When the engineers of the company did not turn up to repair the refrigerator, the complainant No.2 again lodged the complaint on 21.04.2016 vide complaint No.16042102946. On 26.04.2016, the engineers came and fitted condenser in the refrigerator, but even then, the refrigerator was not working properly and they found that the present condenser was not of the same model. The engineers informed that they are taking back the condenser and on next time they will bring the correct condenser, but they did not turn up. The complainant No.2 made several calls to the OPs on toll free number on 15.09.2016, 21.09.2016 and 10.10.2016, but nothing was done by the OPs. In the month of December, the complainant No.2, approached the OP No.1 and asked either to replace the refrigerator or refund the amount, but all in vain. On 30.12.2016, complainant No.2 received a call from the Area Head that they have registered his complaint and will resolve very shortly, but till date, none had come. Inspite of repeated repairs, the refrigerator in question could not be repaired by the engineers of the OPs, which shows that the refrigerator has manufacturing defect and is beyond repairs, which shows deficiency in service on the part of the OPs. Hence, the present complaint.

2.                Upon notice, OPs appeared through counsel and filed written version and raised preliminary objections regarding maintainability; cause of action; jurisdiction and the complainant is not a consumer. On merits, it is stated that the complainant has not come with clean hands and has suppressed the true and material facts from this Hon’ble forum. On receiving the complaint regarding defect in the refrigerator in question, immediately, the OPs sent service technician to the premises of the complainant for checking the refrigerator, who checked the same and found that the condenser of the refrigerator was physically damaged. After getting the new condenser from the company, the service technician visited the complainant No.2 to the replace the defected condenser with the new one, but the complainant No.2 refused to get it replaced and asked him to replace the refrigerator with new one. There is no manufacturing defect in the refrigerator as alleged by the complainant No.2, but he wants the replacement of the same without any reason. The complainant No.2 has not produced any expert report. However, the OP No.2 is still ready to repair the refrigerator. The rest of the allegations levelled by the complainants were denied for want of knowledge and prayer has been made for dismissal of the present complaint.

3.                The ld. counsel for the complainants tendered affidavit of complainant No.2 as Annexure CX alongwith document as Annexure C-1 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Shri Sourabh Chawla, Area Manager Service, Voltas Limited as Annexure RA and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel of the parties and carefully gone through the case file and also the case laws referred by the ld. counsel for the complainant.

5.                At the outset, the learned counsel for the OPs has raised objection that complainants are not the consumers, because the refrigerator in question has been purchased for commercial purposes. To this effect, the learned counsel for the complainant has argued that the complainant No.2 is the owner of Om Bikaner Misthan Bhandar i.e. OP No.1 and is running the said shop for earning his livelihood by way of self employment, thus he is a consumer qua the OPs. From the invoice dated 29.03.2016 (Annexure C-1), it is evident that the refrigerator in question has been sold by the OP no.1 in the name of complainant No.1. The plea of complainant No.2 is that he is running the shop in the name and style of Om Bikaner Misthan Bhandar i.e. OP No.1, for earning his livelihood by way of self employment. Since the complainant has purchased the refrigerator in question for his shop which he is running for earning his livelihood by way of self employment, thus as per Section 2(1)(d) of CP Act, the complainants are the consumers qua the OPs and this objection raised by learned counsel for the OPs, is not tenable, hence rejected.

6.                On merits, the learned counsel for the complainants has argued that he being the proprietor of complainant No.1, had purchased a refrigerator from the OP No.1, manufactured by OP No.2, vide invoice dated 29.03.2016 (Annexure C-1) for a sum of Rs.33,800/-. The said refrigerator got defected on 09.04.2016 i.e. within few days of its purchase and complainant No.2 lodged the complaint with the OP No.2. However, the engineers of OP No.2 failed to set it right even after repeated repairs. Meaning thereby, the refrigerator was having manufacturing defect in it. From the inspection report dated 18.10.2018, it is clear that there are technical defects in the refrigerator in question. By selling the defected refrigerator and not by set it right, the OPs have committed deficiency in services.

7.                On the contrary, the learned counsel for OPs has argued that on receiving the complaint regarding defect in the refrigerator in question, the OPs immediately sent its technician to the premises of the complainant No.1 for checking the same. On checking, the condenser of the refrigerator was found physically damaged. After getting the new condenser from the company, the technician visited the premises of the complainant to the replace the same with the new one, but the complainant No.2, refused to get the same replaced and asked him to replace the refrigerator with the new one. However, it was made clear to the complainant No.2 that as per warranty policy, the company is only liable to set right the refrigerator in question, either by repairing or replacing the defective part(s), and is not liable to replace the refrigerator. From the Inspection Report dated 18.10.2018 (Mark ‘A’), it is evident that the refrigerator can be repaired by using genuine spare parts and as a goodwill gesture, the OP No.2 is still ready to set it right either by repairing or replacing the defective part(s), free of costs.

8.                Admittedly, complainants purchased the refrigerator in question vide Invoice dated 29.03.2016 from the OP No.1, manufactured by OP No.2. It is also not disputed that the condenser of the refrigerator got defected within few days of its purchase. The plea of the OPs is that the complainant No.2 did not allow their technician to replace the defected condenser of the refrigerator. However, to prove this fact, the OPs have not produced any cogent and convincing evidence. Thus, the barred assertions of the OPs cannot be relied upon.

9.                From the inspection report dated 18.10.2018, it is evident that the expert has found technical defects in the refrigerator and has stated that:-

1. A Tube Plate condenser (which does not belong to the refrigerator model) was used for its last repair instead of a Fin Tube type condenser.
2. The Tube plate condenser was placed behind the fan; however, a Fin tube type condenser should be fitted in front of the fan. 

                    From the said inspection report, it is clear that the repair of the refrigerator in question was not done in a proper manner. Since the refrigerator in question got defective immediately after its purchase and due to non repair by the OPs in a proper manner, the complainants were deprived of its use from the very beginning of its purchase and the whole purpose of the complainant No.2 to purchase the said refrigerator got defeated and had gone through a lot of inconvenience. Thus, taking all these facts & circumstances into consideration, we are of the view that it is a fit case, where the cost of the said refrigerator is to be refunded to the complainants alongwith interest. We derive support from the judgment passed by the Hon’ble Delhi State Commission in the case of Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Ors., 2014 (1) CLT, 588, wherein, it has been held that failure of the compressor of the AC within 2-3 Months of its purchase itself amounts to manufacturing defect and principle of res ipsa loquitur should have been applied. It is further held that in the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because the replacement of the product will never satisfied the consumer because the consumer had lost faith in the company’s product. If the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous. It may be stated here that the complainant No.2 being the proprietor of Om Bikaner Misthan Bhandar, is also entitled to get compensation for the mental agony and physical harassment suffered by him, alongwith the litigations expenses. Since the refrigerator got defected immediately after its purchase, therefore, the OP No.1 being the seller and OP No.2 being manufacturer, are jointly and severally liable to refund the compensate the complainants.

10.              In view of the aforesaid discussion, we allow the present complaint and direct the OPs in the following manner:-

1. To refund Rs.33,800/-, the cost of the refrigerator in question to the complainants, alongwith interest @ 7% per annum w.e.f. 13.12.2017 i.e. the date of the filing the present complaint, till its realization.
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant No.2.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OPs are further directed to comply with the aforesaid directions jointly & severally within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :15.07.2019.

 

 

          (Vinod Kumar Sharma)           (Ruby Sharma)     (Neena Sandhu)

              Member                                  Member             President