Punjab

Rupnagar

CC/17/26

Naveen Kumar - Complainant(s)

Versus

Abhi Traders - Opp.Party(s)

In Person

26 Sep 2017

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. :  26 of 09.05.2017

                                 Date of decision                    :      26.09.2017

 

Naveen Kumar, aged about 29 years, son of Brij Mohan, resident of Mohalla Bari Sarkar, Anandpur Sahib, District Rupnagar  

                                                                 ......Complainant

                                             Versus

1. Abhi Traders Near Sikh Misonerry Colleger, Choi Bazar Road, Anandpur Sahib, District Rupnagar

2. Samsung India Electronics Private Limited, registered office, A -25,Ground Floor, Front Tower, Mohan Cooperative Industrial Estate, New Delhi-110044, through its Manager                                                                                                                        ....Opposite Parties

                         Complaint under Section 12 of the                                                     Consumer Protection Act, 1986

QUORUM

 

                        MRS. NEENA SANDHU, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh.Sunil Pahuja, Advocate, counsel for complainant 

Sh. Hemant Chaudhary, Adv. counsel for O.P. No.1

Sh. Chetan Kumar Gupta, Adv. counsel for O.P. No.2

 

ORDER

                                  MRS. NEENA SANDHU, PRESIDENT

Sh. Naveen Kumar through his counsel 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 ‘the O.Ps.’) praying for the following reliefs:-

i)       To replace the refrigerator in question

ii)      To pay Rs.20,000/- as compensation for the mental agony and physical harassment suffered by him

iii)     To pay Rs.10,000/- as litigation expenses.

 

2.             The brief facts of the case are that the complainant on 08.03.2016, purchased one refrigerator of Samsung make, from the O.P. No.1 for a sum of Rs.25,500/-. The body of the said refrigerator got defective, after some time of its purchase. On 26.12.2016, he lodged a complaint No. 4227936768 at the customer care number i.e.1800407267864. The customer care service employee visited his house and assured him to replace the said refrigerator. He also informed the O.P. No.2 about the defect in the said refrigerator, it assured him that if the company does not replace the said refrigerator then it would refund the price of the same. The O.P. No.1 told him to provide ID proof and bill, for replacement of the said refrigerator. But thereafter, the O.P. No.1 even refused to repair the same. Hence, this complaint.

3.       On being put to the notice, the O.P. No.1 has filed written version taking preliminary objections; that the present complaint is not maintainable in the present form; that the complainant has not come to this Hon’ble Forum with clean hands; that the complaint has been filed by the complainant with ulterior motive to grab money from the O.P. No.1; that there is no deficiency in service on the part of the O.P. No.1; that the present complaint is wholly misconceived groundless and unsustainable in law; that this Hon’ble Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint; that the definition of complainant complaint consumer Dispute and Service as defined in section 2(1) of the said Act do not cover the aforesaid definitions, the complainant is not consumer and the controversy involved in the complaint is not a consumer dispute;  that the present complaint is basless and flagrant abuse of process of law to harass and blackmail the answering O.P.; that the complainant has no locus standi to file the present complaint; that the present complaint is hopelessly barred by limitation; that the present complaint is frivolous and vexatious. On merits, it is stated that it is correct that the complainant purchased the refrigerator in question from it but the complainant had not paid the full and final/complete payment. At the time of purchase of the said refrigerator, the complainant paid Rs.5500/- only and he had still to pay the remaining amount of Rs.20,000/-.  When, it asked the complainant to pay the remaining amount, then he threatened him that he will file a false case against it. The complainant has not disclosed any specific defect in the said refrigerator. Even otherwise, if there is any manufacturing defect in the said refrigerator then the company/manufacturer has to replace the same. It is further stated that by not making the balance amount, the complainant himself is at fault and cannot take any benefit of his own wrong. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

 

4.                    The O.P. No.2 has filed written On being put to the notice, the learned counsel for the O.P No.2 have filed written version taking preliminary objections that  the complaint is baseless, devoid of any merits whatsoever and without any cause of action whatsoever against the answering O.P.; that this Hon'ble Forum have not territorial jurisdiction to entertain and adjudicate the present complaint; that the complainant has not approached this Hon'ble Forum with clean hands; that the present complaint is without any just or reasonable basis, an abuse of the process of law, misuse of machinery provided for redressal of genuine grievances. On merits, it is stated that answering O.P. provides one year compressor warranty on the unit and five year warranty of the compressor of the unit and warranty means in case of any problem with the unit, the unit will be repaired or its parts will be replaced as per warranty policy. The warranty of the unit is subject to some terms and conditions and the warranty becomes void in the following conditions:-

                   1. Liquid Logged/water logging

                   2. Physically Damage

                   3. Serial No. Missing

                   4. Tampering

                   5. Mishandling/Burnt etc. 

 

                             It is further stated there is no manufacturing defect in the alleged unit and the complainant is trying to get illegal benefits of its own wrong by concealment of true facts of the case. In fact the complainant in regards to the alleged refrigerator has approached to the answering O.P. on 28.12.2016 vide complaint No.4227936768 and reported some black spot problem on the body of the unit. The unit was purchased on 8.3.2016 and after using the said unit for a period of about nine months the complainant making false allegations that the unit having any black spot on the body of the unit.  The engineer of the answering O.P. visited the house of the complainant and thoroughly checked the unit and found that there is a black spot on the refrigerator. The engineer told to complainant that unit is out of policy as the black spot of the body of the unit is a result of negligence of the complainant and the repair of the unit shall be on chargeable basis as per conditions of the warranty. but the complainant become adamant to get his unit be replaced by new one. after that the complainant again approached the answering O.P. on 5.5.2017 vides complaint No.4235870185 and again reported same black spot problem on the body of the unit. The engineer of the answering O.P. again visited the house of the complainant and checked the unit and found the same previous problem i.e. a black spot on the refrigerator. The engineer again told to the complainant that the unit is out of policy as the black spot on the body of the unit is a result of negligence of the complainant and the repair of the unit shall be on chargeable basis as per conditions of the warranty. It is further stated that the answering O.P. was and is still ready to repair the unit as per warranty policy, so there is no deficiency in service on the part of the answering O.P. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

            5.              On being called upon to do so, complainant has tendered his duly sworn affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C5 and closed the evidence. The learned counsel for the O.P. No.1 has closed the evidence. The learned counsel for the O.P. No.2 has tendered duly sworn affidavit of Sh. Anindya Bose, Legal Representative of the company Ex.OP2/A along with documents relating to the service condition Ex.OP2/B and closed the evidence.

       6.                            We have heard the learned counsel for the contesting parties and have gone through the record of the file, carefully.

      7.          From the invoice dated 08.03.2016, Ex.C1 it is evident that complainant purchased the refrigerator in question from the OP NO.1 for a sum of Rs. 25,500/-. The O.P. No.1 has alleged that the complainant had paid only Rs.5500/- and still has to pay the remaining amount of Rs.20,000/-. It may be stated that once the OP No.1 had received Rs.5500/- then why it had issued a bill for a sum of Rs.25,500/- to the complainant. Thus, this allegation of the O.P. No.1 is baseless. The learned counsel for the complainant has submitted that some black spots appeared on the body of the refrigerator in question after some time of its purchase. On lodging of the complaint, the engineer of the OP visited his house and on seeing the black spots on the body of the refrigerator assured him to replace the refrigerator in question with the new one. Since the black spots occurred on the body of the unit during the warranty period, therefore it was the bound duty of the OPs to replace the same with the new one. But the OPs refused to replace the same. The learned counsel for the OP No.1 has submitted that, there is no manufacturing defect in the refrigerator in question. If for the arguments sake, we believe that the refrigerator in question has some inherent manufacturing defect then it is the duty of the manufacturer to replace the same with the new one, and has prayed that the compliant filed against the OP No.1 may kindly be dismissed. The learned counsel for the OP No.2 has submitted that the black spots have occurred on the body of the said unit due to the negligence of the complainant and as per terms and conditions of the warranty, the repair of the unit could be done on chargeable basis but the complainant refused to get it repaired. Thus the OP No.2 could not be said to be deficient in providing services and the complaint filed against it is liable to be dismissed with cost.

          Admittedly complainant purchased the refrigerator in question from the OP No.1, on 08.03.2016 for a sum of Rs.25,500/-. From the photographs Ex C2 to Ex C3, it is clear that there are spots on the body of the refrigerator. Even, the OP No.2 in its written version has fairly admitted the factum of having black spots on the body of the unit. The learned counsel for the O.P. No.2 has submitted that the black spots appeared on the body of the refrigerator due to the negligence of the complainant but has failed to prove the said fact by adducing any cogent and convincing evidence. As per O.P. No.2, complainant lodged the complaint with regard to the black spot on the body of the refrigerator in question on 28.12.2016, i.e. after a period of about nine months from the date of its purchase. From the copy of warranty documents EX-OP2/3, it is evident that the refrigerator is having a warranty of twelve months. It may be stated that the complainant has purchased the refrigerator in question from the O.P. No.1, manufactured by O.P. No.2, as such, it was the bounded duty of the O.P. No.1 being the seller and the O.P. No.2 being the manufacturer to provide after sale services to the complainant. Since, the black spots on the body of the refrigerator in question occurred within one year of its purchase i.e. during the warranty period, therefore, as per terms and conditions of the warranty the O.Ps. were bound to rectify the defect, free of cost. But, by not doing so, the OPs have committed deficiency in service. We thus, do not hesitate to hold that the OPs are not only liable to replace the defective refrigerator with the new one but are also liable to compensate the complainant for the mental agony and physical harassment suffered by him along with litigation.

  8.              In view of the aforesaid discussion, we allow the complaint against the O.Ps. and they are directed in the following manner:-

      1. To replace the refrigerator in the question with the new one of same        model and brand and to provide a fresh warranty or in the alternative          to refund its price amounting to Rs.25,500/- alongwith the interest @ 7% per annum from the date of lodging complaint i.e. 28.12.2016 till          payment.

      2.  To pay Rs.5000/- as compensation for the mental agony and                                          physical harassment suffered by the complainant

     3.    To pay Rs.5000/- as litigation expenses

          The O.Ps. No.1 & 2 are further directed to comply with the order jointly and severally within the period of 30 days from the date of receipt of certified copy of this order.

9.                The certified copies of this order be supplied to the parties    forthwith, free of costs, as permissible under the rules and the file          be indexed and consigned to Record Room.

 

          ANNOUNCED                                                                       (NEENA SANDHU)

          Dated .26.09.2017                                                PRESIDENT

 

 

                                                           (SHAVINDER KAUR)

                                                                              MEMBER