BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.
Consumer Complaint No. 599 of 2019
Date of Institution: 13.8.2019
Date of Decision:.28.9.2021
Navdeep Singh S/o Balbir Singh R/o Ward No.12, Near Kothi School, Majitha District, Amritsar -9888645844
Complainant
Versus
- Bajaj Electronics Outlet 1, Hall Bazar Amritsar Second Address Ist Floor, SCO-107, Distt. Shopping Center, Ranjit Avenue, Amritsar through its Manager/authorized/Principal Office4r – 01832540872
- Samsung India Electronics Private Limited Registered Address : 6th Floor, DLF Centre, Sansad Marg, New Delhi 110001 through its Manager/authorized/Principal Officer
- Samsung Authorized Service Centre, M/s. Raja Enterprises, Authorized Samsung Service Center, 29 Chowk Farid, Amritsar
Opposite Party
Complaint under section 11 & 12 of the Consumer Protection Act, 1986 (now u/s 35 of the Consumer Protection Act, 2019)
Result : Complaint Allowed
Case referred
- Maruti Sazuki India Ltd. Vs. Dr. KoneruSatya Kishore &Ors. Of National Consumer Disputes Redressal Commission, New Delhi 1(2008) CPJ 157(NC)
- Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors II(2005) CPJ 102 (NC) , Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. 3(2010) CPJ 130 (NC) & Stereocraft Vs. Monotype India Ltd. New Delhi (2000) NCJ (SC) 59 of the Hon’ble Supreme Court
- “Kulwinder Singh Versus LIC of India “ 2007(1) CLT 303)
Counsel for the parties :
For the Complainant : Sh. B.S.Rajput,Advocate
For the Opposite Party No.2 : Ms.Preeti Mahajan,Advocate
For the Opposite parties No.1 & 3 : Ex-parte
CORAM
Mr. Jagdishwar Kumar Chopra, President
Mr.Jatinder Singh Pannu, Member
ORDER:-
Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by the complainant u/s 11 & 12 of the Consumer Protection Act, 1986 (now u/s 35 of the Consumer Protection Act, 2019).
Brief facts and pleadings
1. Brief facts of the case are that the complainant had purchased one Refrigerator Model RT-65K7058BS-TP vide Invoice No. G30697 dated 14.8.2018 from opposite party No.1 for Rs. 69000/-, copy of invoice is Ex.C-1. Opposite party No.2 is the manufacturing company of this Refrigerator, opposite party No.1 is retailer and opposite party No.3 is the service centre/ At the time of sale representative of the opposite party No.1 had given warranty for the refrigerator for one year and warranty of compressor of the refrigerator 60 months and warranty of digital inverter compressor 120 months, copy of warranty card is Ex.C-3. In the month of June 2019 the said refrigerator create problem i.e. cooling temperature and another and the refrigerator working not properly. The complainant lodged a complaint regarding the non functioning i.e. No cooling/temperature/condensation to the service centre of opposite party No.3 vide service order No. 4284175587 dated 7.6.2019. After complaint Er. Bagwant Singh checked the refrigerator on 8.6.2019 and told that there is only duct block and clean the duct and further told that if there is any problem then again call to customer service centre. The complainant again facing the problem in the refrigerator regarding same things and lodged complaint on 25.7.2019 vide service order No. 4287354815, copy of same is Ex.C-5. On 27.7.2019 service engineer of opposite party No.3 came and checked the refrigerator and filled the Gas and assured the proper functioning of the refrigerator. But later on refrigerator is not working properly. The complainant lodged complaint vide complaint No. 4287994916 on 5.8.2019 . But the opposite party is not taking any action against the genuine request of the complainant. As such the opposite parties are liable to replace the refrigerator or to refund the entire sale price to the complainant. The aforesaid acts of the opposite party amounts to deficiency in service, malpractice, unfair trade practice and an illegal and arbitrary act which has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant. Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite parties be directed to replace the Refrigerator with new one or to refund the amount of Refrigerator alongwith interest to the complainant ;
(b) Compensation to the tune of Rs. 50,000/- may also be awarded to the complainant.
(b) Opposite parties be also directed to pay adequate litigation expenses to the complainant ;
(b) Any other relief to which the complainant is entitled be also awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite party No.2 appeared and filed written version taking preliminary objections therein inter alia that complainant has lodged two complaint with answering opposite party through its authorized service centre on 5.8.2019 and 12.8.2019 which were duly attended and on checking no problem was found as the refrigerator was perfectly working and all the parameters were within normal range but the complainant is adamant for replacement of the product , as such the complaint merits dismissal ; ; that complainant has concealed the material fact that the obligation of the answering opposite party under warranty is to set right the Refrigerator by repairing or replacing the defective part within one years of its purchase as the warranty is only for one year from the date of purchase; that the complainant has not set out any legitimate ground for replacement or refund of price as the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part nor filed any documentary evidence . In the absence of any independent expert evidence the claim cannot be allowed. The complainant claims the said Refrigerator to be suffering from defects, therefore, it is the legal duty upon the complainant to establish technical expert report but no such report has been adduced by the complainant ; that the answering opposite party or its authorized service centre never denied after sale service with regard to the Refrigerator in question ; that without admitting that there is any defect in the product I question , it was submitted that even if the allegation of the complainant is taken as truth, the defect, if any can be rectified by repair work, no direction for refund of cost of product can be issued. In support of this version opposite party placed reliance upon Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors II(2005) CPJ 102 (NC) , Stereocraft Vs. Monotype India Ltd. New Delhi (2000) NCJ (SC) 59 ,which clearly laid down that “as per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered”; that the replacement of product and or refund of price cannot be granted until and unless complainant has proved by cogent and adequate evidence. Reliance in this connection has been placed upon 3(2010) CPJ 130 (NC) Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. On merits it was submitted that in the month of June 2019 complaint was lodged on 7.6.2019 which was duly attended by opposite party No.3 and problem was duly rectified by cleaning the duct. It was matter of record that complainant lodged complaint on 25.7.2019 with regard to low cooling . The engineer of opposite party No.3 visited the premises of the complainant and checked the refrigerator and on checking he found that dryer needs replacement which was dune by him free of cost and gas was refilled under warranty and refrigerator was made fully functional. It was admitted that complainant lodged complaint on 5.8.2019. It was denied that opposite party No.3 did not take any action. Rather service engineer visited the premises and checked the refrigerator but no such problem of low cooling was found and the refrigerator was perfectly working . While denying and controverting other allegations, dismissal of complaint was prayed.
3. On the other hand opposite parties No.1 & 3 did not opt to put in appearance and were proceeded against ex-parte vide order dated 13.11.2019.
Evidence of the complainant and Arguments
4. Alongwith the complaint, complainant has filed his self attested affidavit Ex.CW1/A, copy of invoice Ex.C-1, copy of cash receipt Ex.C-2, copy of warranty card Ex.C-3, copy of complaint dated 7.6.2019 Ex.C-4, copy of complaint dated 25.7.2019 Ex.C-5, copy of acknowledgement Ex.C-6 and closed his evidence.
5. On the other hand opposite party No.2 alongwith written version has filed affidavit of Sh. Anup Kumar Mathur Ex.OP2/1, copy of warranty information Ex.R-1 and closed the evidence on behalf of opposite party No.2.
6. We have heard the Ld.counsel for the complainant as well as Ld.counsel for opposite party No.2 as well as written arguments submitted on behalf of opposite party No.2 and have carefully gone through the record on the file . Ld.counsel for the complainant has suffered a statement that he does not want to file written arguments and the contents of the complaint be read as part of written arguments.
Findings
7. From the pleadings of the parties and the evidence produced on record, it stands proved on record that complainant had purchased one Refrigerator Model RT-65K7058BS-TP vide Invoice No. G30697 dated 14.8.2018 from opposite party No.1 for Rs. 69000/-, copy of invoice is Ex.C-1. It also stands proved on record that at the time of sale representative of the opposite party No.1 had given warranty for the refrigerator for one year and warranty of compressor of the refrigerator 60 months and warranty of digital inverter compressor 120 months, copy of warranty card is Ex.C-3. It was the case of the complainant that in the month of June 2019 the said refrigerator create problem i.e. cooling temperature and the refrigerator did not work properly. In this regard complainant lodged a complaint to the service centre of opposite party No.3 vide service order No. 4284175587 dated 7.6.2019, copy of complaint is Ex.C-4. After complaint Er. Bagwant Singh checked the refrigerator on 8.6.2019 and told that there is only duct block and cleaned the duct . The complainant again faced the same problem in the refrigerator and lodged complaint on 25.7.2019 vide service order No. 4287354815, copy of same is Ex.C-5. On 27.7.2019 service engineer of opposite party No.3 came and checked the refrigerator and filled the Gas and assured the proper functioning of the refrigerator. But later on refrigerator is not working properly. The complainant lodged complaint vide complaint No. 4287994916 on 5.8.2019 . But the opposite party is not taking any action against the genuine request of the complainant. Ld.counsel for the complainant contended that the act of the opposite party in selling a defective product amounts to deficiency in service, malpractice, unfair trade practice and an illegal and arbitrary act which has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant.
8. On the other hand the only plea of opposite party No.2 is that complainant has lodged two complaints with answering opposite party through its authorized service centre on 5.8.2019 and 12.8.2019 which were duly attended and on checking no problem was found as the refrigerator was perfectly working and all the parameters were within normal range but the complainant is adamant for replacement of the product . It was submitted that obligation of the answering opposite party under warranty is to set right the Refrigerator by repairing or replacing the defective part within one year of its purchase as the warranty is only for one year from the date of purchase. It was further submitted that the complainant has not set out any legitimate ground for replacement or refund of price as the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part nor filed any documentary evidence . In the absence of any independent expert evidence the claim cannot be allowed. The complainant claims the said Refrigerator to be suffering from defects, therefore, it is the legal duty upon the complainant to establish technical expert report but no such report has been adduced by the complainant . It was submitted that in the month of June 2019 complaint was lodged on 7.6.2019 which was duly attended by opposite party No.3 and problem was duly rectified by cleaning the duct. It was matter of record that complainant lodged complaint on 25.7.2019 with regard to low cooling . The engineer of opposite party No.3 visited the premises of the complainant and checked the refrigerator and on checking he found that dryer needs replacement which was done by him free of cost and gas was refilled under warranty and refrigerator was made fully functional. It was admitted that complainant lodged complaint on 5.8.2019. It was denied that opposite party No.3 did not take any action. Rather service engineer visited the premises and checked the refrigerator but no such problem of low cooling was found and the refrigerator was perfectly working.
9. From the appreciation of the facts and circumstances of the case, it is admitted case of both the parties that complainant has purchased the refrigerator make Model RT-65K7058BS-TP vide Invoice No. G30697 dated 14.8.2018 from opposite party No.1 for Rs. 69000/-, copy of invoice is Ex.C-1 and Ex.C-2. It is also admitted fact that at the time of sale representative of opposite party No.2 has assured that Samsung is branded company and refrigerator is very good with no problem in its functioning and further it was equipped with one year warranty i.e. 60 months of warranty of compressor and 120 months of Digital Inverter Compressor. However, the opposite party itself admitted that the complainant lodged complaints with the opposite party on 7.6.2019, 25.7.2019 as well as on 5.8.2019 i.e. within warranty period . However the engineer of the opposite party set right the refrigerator by removing the fault as well as by filling the gas in the refrigerator on two occasions i.e. on 7.6.2019 and 25.7.2019 vide Ex.C-4 and Ex. C-5. But however the complaint lodged on 5.8.2019 Ex. C-6 was not being attended by the opposite party. The only plea of the opposite party is that obligation of the answering opposite party under warranty is to set right the Refrigerator by repairing or replacing the defective part within one year of its purchase as the warranty is only for one year from the date of purchase. But we are not agreed with this plea of the opposite party as the consumer cannot be expected to lodge the complaint regarding the defects in the refrigerator to the service centre on a number of occasions vide which the opposite party issued job sheets Ex.C-4, Ex.C-5 and Ex.C-6 unless there are defects in the said refrigerator. Reliance in this context has been placed upon Maruti Sazuki India Ltd. Vs. Dr. KoneruSatya Kishore &Ors. Of National Consumer Disputes Redressal Commission, New Delhi 1(2008) CPJ 157(NC) wherein it has been held that defects not removed despite several visits to workshop. Vehicle had to be taken to workshop of dealer on a number of occasions with complaints of intermittent Jerks, running and hash noise from gear box assembly system. Dealer made efforts to remove defects but vehicle could not be made free from such defects. It has also been held that consumer cannot be expected to take vehicle to workshop on a number of occasions, a vehicle is said to be suffering from ‘defect’, if there is any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard, which was required to be maintained under any law in force. Vehicle did suffer from defects as it had to be taken to workshop of dealer from time to time. The petitioner failed in the task to provide vehicle in road worthy condition to complainant. Dealer did carry out repairs in vehicle as per job cars, but was not able to remove the defects in vehicle. Refund of purchase price and compensation rightly awarded. So it stands proved on record that the complainant has to lodge complaints on several occasions which proves that the refrigerator had some inherent defect due to which the complainant has to move the complaints with the opposite party. So far as the opposite party has quoted certain judgements in the written version giving explanation to cover up its case such as Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors II(2005) CPJ 102 (NC) , Similarly another judgement Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. 3(2010) CPJ 130 (NC) and lastly judgement of the Hon’ble Supreme Court Stereocraft Vs. Monotype India Ltd. New Delhi (2000) NCJ (SC) 59. The Commission has gone thorough consideration to the judgements cited by the opposite party. Section 2(oo) “spurious goods and services” mean such goods and services which are claimed to be genuine but they are actually not so.” Similarly clause 2( r)(I)(i) explanation regarding “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices namely:-
- the practice of making any statement, whether orally or in writing or by visible representation which (i)falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model.”
For the purpose of applicability on the present case, it is pointed out that opposite party itself admitted that during the warranty period the service engineer of the opposite party has visited the complainant premises to make good of the defect in the refrigerator on two occasion vide Ex.C-4 and Ex.C-5 which proves that during the warranty period i.e. within a span of approximately 7 months the opposite party has sent its engineer to remove the defects which proves that the refrigerator had some inherent defect . Again the defect in the refrigerator was reported by the complainant on 5.8.2019 but as per the version of the complainant opposite party has not taken any action to remove the defect and in support of his version the complainant has placed on record service request Ex.C-6 . On the other hand the opposite party in its written version has admitted the lodging of complaint on 5.8.2019 and stated that their service engineer visited the premises of the complainant and no such problem was found . But however, no evidence has been placed on record by the opposite party to prove its version that their service engineer visited the site on 5.8.2019 also. However, it is settled principle of law that in case, two plausible views were available, under given set of facts, the court shall be obliged to the view which was favourable to the consumer. Reference in this regard can be had to “Kulwinder Singh Versus LIC of India “ 2007(1) CLT 303 (Punjab) wherein it has been held that “where two views are possible, the one, which favour the consumer should be taken. In support of his version the complainant has filed his affidavit . However, the judgements quoted above are concerned, these are not applicable to the present case . It is settled principle of law that each case has its independent facts and the judgements as referred by the opposite party are not applicable to the present case particularly when it is established principle that man can tell lie but not the circumstances. In the present case circumstances compelled the complainant to knock the door of the Commission to resolve his grievances. The Commission is of the considered view that the defects could not be removed from the refrigerator despite visit of the engineer to the premises of the complainant on several occasion as discussed above, so the defects in the product are inherent which could not be removed by the service engineer despite their visit to the premises of the complainant. However, perusal of the warranty card Ex.C-3 is silent about the inherent defect in the product that how it should be made out . Certainly , it is only made out with the replacement of the product. In the present case also this Commission cannot ignore the fact that the consumer/complainant has spent Rs.69000/- to purchase this product from his hard earned money and relief cannot be denied merely on the ground of technicalities. Since whole scheme of the Consumer Protection Act is based upon principle of natural justice, hence this Commission is inclined to found the opposite parties are guilty of deficiency in service as well as unfair trade practice. So the opposite parties are liable either to replace the product or to refund the sale price of the product to the complainant .
Relief
10. Keeping in view the above facts, the complaint is allowed with the following directions:-
(a) Opposite parties are jointly or severally directed to replace the refrigerator of the complainant with new one of same make or model or in the alternative to refund the sale price of the refrigerator to the tune of Rs. 69000/-alongwith interest @ 9% p.a. from the date of filing of the complaint till realization to the complainant.
(b) So far as compensation , it is well settled principle of law that compensation term has not been explained in the Consumer Protection Act, however this Act is based on principle of equity, good concise and natural justice and the Commission is empowered to provide compensation after assessing the facts of each case. As the complainant has suffered a lot of mental as well as physical agony due to the act of the opposite parties, as such the opposite parties are liable to pay compensation to the tune of Rs. 10000/- to the complainant besides this the opposite parties are also directed to pay litigation expenses to the tune of Rs. 2000/- to the complainant . The liability of the opposite parties to pay compensation and litigation expenses is jointly or severally.
Compliance of this order be made within 30 days from the date of receipt of copy of this order ; failing which the complainant is entitled to get the order executed through the indulgence of this Commission. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.
Announced in Open Commission (Jagdishwar Kumar Chopra) President
Dated: 28.9.2021
(Jatinder Singh Pannu)
Member
