Haryana

Ambala

CC/149/2022

Sushil - Complainant(s)

Versus

Ambala Frost Engineers - Opp.Party(s)

In Person

01 Oct 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	149 of 2022
Date of Institution	:	17.05.2022
Date of decision	:	01.10.2024

SUSHIL (aged about 55 years) son of Mehar Chand Saini, resident of House No: 136/A, Dayal Bagh, Ambala Cantt, District Ambala.

.…..Complainant

Versus

1. Ambala Frost Engineers-FY (2020-21), 1805, Hargolal Road, Kacha Bazar, Ambala Cantt through Prop. Shanty son of Jajju.
2. Oberoi Refregeration, 25-C, Shashtri Colony, Near Gate No: 2. Ambala Cantt-133001, through Its Authorized signatory/ representative.
3. Voltas Limited, Branch Office Plot No:194-195, First Floor, Industrial Area, Phase-II, Chandigarh-160002.

 

….…. Opposite Parties

Before:         Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:        Shri Jasbir Singh Atri, Advocate, counsel for the complainant.

                      OPs No.1 and 2 already ex parte. .

                      Shri Rajiv Sachdeva, Advocate, counsel for the OP No.3.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (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 replace the defective fridge immediately with the new one or in the alternative, to refund the amount of Rs. 26,500/-.
2. To pay Rs.75,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.  
3.  To pay Rs.10,000/ as litigation expenses.
4.  Grant any other relief, which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the complainant is running his business at Village Chhota Khudda. District Ambala, in the name and style of Mahadev Backery. The complainant has purchased Three Fridge from OP No.1 vide Bill Number AFE/303 dated 17-12-2021 amounting to Rs.87,500/-. Out of these three fridges, one fridge is of Voltas Company capacity 320 Ltrs, Colour White, amounting to Rs.26,500/-. At the time of purchase, the OP No.1 assured to give one year guarantee. All the above said amount was paid by the complainant to the OP No.1 in cash. During the month of February, 2022 when the complainant checked the above said fridge, he came to know that it is not cooling properly and without wasting any time, the complainant reported the matter to the OP No.1, who advised the complainant to call on Toll-free number. On 24-04-2022, the complainant carried the fridge at the service centre of OP No.1 and the representatives of OP No.2 advised the complainant to leave the fridge at the service centre for repair/service. On this, the complainant requested the representatives of the OP No.2 to issue him receipt etc for leaving the fridge. However, the representatives of the OP No.2 assured the complainant that he should not worry about this and they will repair/serviced the fridge in question and on their assurance, the complainant left the fridge with OP No.2. On the same day the representative of the OP No.2 telephonically informed the complainant that the fridge has been fully repaired/serviced and the same is working in proper manner. After the assurance, the complainant came back alongwith fridge to his business place/shop, but he was too much surprised and shocked to note that the fridge was not working properly and the  OP No.2 has just wasted the time of the complainant. Thereafter, the complainant reported the matter to the OPs No.1 and 2 in the matter but to no avail. On the other hand, the OPs are now compelling the complainant to get repair the fridge from Private Mechanic despite the fact that the same is under warranty / guarantee period. The complainant has stated his business of Ice-Cream, Karyana etc. after obtaining the loan, but due to the clear defect/discrepancies in the fridge, the complainant has suffered too much and at the same time, the OPs No.1 and 2 have totally refused to repair the fridge in question as they are not even ready to listen the genuine request of the complainant. Hence, the present complaint.
3.           Upon notice, none appeared on behalf of the OPs No.1 and 2  before this Commission, therefore, they were proceeded against ex-parte vide order dated 21.07.2022.
4.           Upon notice, OP No.3 appeared and filed written version and raised  raised preliminary objections to the effect that this complaint is not maintainable; the complainant has concealed the true and material facts and has not come with clean hands; because the  refrigerator  in question was purchased for commercial purpose and in his complaint the complainant has not mentioned that the same has been purchased for using the same to earn livelihood therefore he is not consumer; the complainant has failed to place on record any evidence to prove that the  refrigerator  is suffering from any defect; even no expert report has been sought by way of sending the  refrigerator  to any laboratory etc. which is mandatory under the provisions of CPA 2019; the alleged defect cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same; it is the settled position of Law that an expert opinion/ cogent Evidence is mandatory under section 38 (2) (c) of consumer protection act 2019 to prove the allegations/averments made by complainant; the complainant has miserably failed to prove the alleged manufacturing/technical fault as he has not placed on record any analysis test report for the perusal of this Commission and in the absence of any technical report on record, the complaint of the complainant deserves dismissal on this ground alone; that the Hon’ble State Commission, in Uttrakhand in Hero Moto Corp Ltd v/s Gaurav Panday & Anr. In first appeal no. 235 of 2013 decided on 24.04.2015, has held that  "In compliance of section 13 (1) (C) of The Consumer Protection Act, 1986, (now envisaged as section 38 (2) C of The Consumer Protection Act 2019) The District forum (now as District commission) has neither ordered to present the motorcycle for technical/expert report, nor ordered to complainant: to file any technical/expert report regarding any manufacturing defect in the motorcycle. Appeal allowed." Etc. On merits, it has been stated that the complainant is trying to mislead this Commission and the complainant has concocted a false story. In fact as per the records of OP No.3, the complainant has not registered any complaint to the service center. OP No.3 has an online system to enter all claims/complaints vide Sr. no. in each and every case but in the present complaint as per limited details mentioned in the complaint, no complaint no., or valid contact no. has been provided by complainant and for the reason, no details found in the online system of the company which means that complainant has never registered any complaint with any of the service center of OP No.3. OP No.3 is always ready to provide services to complainant regarding the unit as per warranty terms and conditions. The company provides one year warranty on the unit and five year warranty only for 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 company policy and the warranty of the unit (warranty means only repair not replacement) and also the warranty is subject to some conditions and the warranty of the unit becomes void in the following conditions:
   1.  Liquid Logged/water logging.
   2. Physically Damage.
   3. Serial no. Missing.
   4. Tampering.
   5. Mishandling/Burnt etc.

Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint with heavy costs.

5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 and C-2 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.3 tendered affidavit of Rajesh Kumar C/o Voltas Limited regt. Office at A-43, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi as Annexure OP-3/A and closed the evidence on behalf of OP No.3.
6.           We have heard the learned counsel for the complainant and learned counsel for the OP No.3 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by supplying defective refrigerator in question to the complainant and on the other hand, neither repairing the defects therein nor replacing the defective refrigerator nor refunding the price thereof, the OPs have indulged into unfair trade practice and  are also deficient in providing service.
8.           On the other hand, learned counsel for the OP No.3 submitted that complainant is not a consumer because he has purchased the refrigerator in question for commercial purpose and he has also failed to mention in his complaint that the same has been purchased for using the same to earn livelihood.  Moreover, to prove that the refrigerator is suffering from any defect, the complainant has failed to place on record any evidence. No expert report has been produced by the complainant to prove that there is any defect in the refrigerator in question.  He further submitted that there is no defect in the refrigerator in question and the same is working properly.
9.           First we are dealing with the objection taken by OP No.3 that the complainant is not a consumer.  It may be stated here that in the case of Cheema Engineering Services Vs. Rajan Singh (1997) 1 SCC 131, the complainant had been using a machine for clay preparation etc.  It was contended by the appellant before the Hon’ble Supreme Court that the complainant was not a consumer within the meaning of the Consumer Protection Act. The Hon’ble Supreme Court inter-alia held as under:

 “6.     ……….. The word “self-employment” is not defined.  Therefore, it is matter of evidence.  Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment.  Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose.  Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.  ‘He’ includes the members of his family.  Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence.  The burden is on the respondent to prove them.”

10.  In Shree Shakti Foams Vs. Canara Bank, First Appeal No. 756 of  2018, decided on 30 Oct 2019, the Hon’ble National Commission held that even if the complainant has not mentioned the fact of earning livelihood by means of self-employment in the complaint then the inference cannot be drawn that the goods were purchased or services were availed for any commercial purpose. In the present case also, the mere status of the complainant being a proprietor of bakery and that he has purchased the refrigerator in question for his backery is not sufficient to say that he is not a consumer.   

As such, objection taken in this regard therefore stands rejected.

11.           The issue under consideration is whether the complainant has successfully demonstrated a defect in the refrigerator in question. It is important to note that the complainant has claimed that the refrigerator began exhibiting cooling problems from February 2022, shortly after its purchase. However, despite this assertion, the complainant has failed to provide any substantial evidence to support his claims. Specifically, there is a noticeable absence of expert reports or any other form of corroborative documentation that would lend credibility to his allegations regarding the refrigerator's malfunction. In conjunction with his complaint, the complainant has submitted only a tax invoice dated December 17, 2021 (Annexure C-1), which pertains to the purchase of three refrigerators, one of which he alleges to be defective. Additionally, he has provided his Aadhar card as Annexure C-2. Simply presenting the invoice and identification does not meet the burden of proof required to establish that the refrigerator is indeed defective. Consequently, without convincing evidence to validate his claims, it cannot be concluded that the refrigerator in question has any inherent defect.
12.           In this view of the matter, it is held that since the complainant has failed to prove his case, as such, no relief can be granted to him in that regard. Resultantly, this complaint stands dismissed with no order as to cost.  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:- 01.10.2024

 

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