Kerala

Idukki

CC/206/2018

Mathew thomas - Complainant(s)

Versus

Bismi appliances - Opp.Party(s)

27 Aug 2020

ORDER

DATE OF FILING :27/11/2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27^th day of August 2020

Present :

SMT.ASAMOL P. PRESIDENT-IN-CHARGE

SRI.AMPADY K.S. MEMBER

CC NO. 206/2018

Between

Complainant : Mathew Thomas,

Aakkanthiriyil House,

Neyyassery P.O., Thodupuzha.

(By Adv: K.M.Sanu)

And

Opposite Party : 1 . The Manger,

Bismi Appliances ,

Kalarickal Bazar, Thodupuzha P.O.

2 . The Manager,

Samsung India Ltd.,

Durgawan, Hariyana 122 002.

(By Adv: Lissy M.M.)

 

O R D E R

SRI. AMPADY K.S. (MEMBER)

 

Allegations of the complainant are as follows.

 

1 . Complainant is an Autorikshaw driver and he purchased one fully automatic top load 6.2 Kg washing machine “WM WA82VNL” for Rs.15,700/- (Fifteen Thousand and Seven Hundred only) from the first opposite party on 22/04/2014. His contention is the first opposite party has represented that the product is having high quality and good after sales service and warranty. It can be used for long term.

 

2 . The product was using by him and while so, it was not working during July, 2018. Matter was informed to the first opposite party and through them, complaint was registered as 4266862754. It was done by calling on phone number 180057267864.

(Cont.....2)

-2-

3 . After few days, one person from the company had come to his residence and after examination of the product, it was informed by him that parts were not available and the product may be abandoned. It was also informed that even though 5 years' warranty was given, it is not applicable to parts. Complainant informed them that he was ready to pay repair charges, but they are reluctant to repair it. Opposite parties are responsible to conduct repair free from defects and the violation thereof is “ deficiency in service”.

 

So he prayed for the following reliefs.

 

1 . Direction may be given to opposite parties either to remove the fault free

from defects or to refund the price of the product.

2 . Allow Rs.10,000/- towards compensation for deficiency in service and

3 . Allow Rs.5000/- towards costs of the case.

 

The first opposite party had no representation and set them ex-parte. The second opposite party filed written version denying almost all allegations of the complainant in the following lines.

 

1 . The complainant without verifying the facts has wrongfully impleaded the second opposite party. The second opposite party is a reputed company and is having a very large customer base.

 

2 . At the outset, the opposite party No.2 denies each and every statement or contention which is inconsistent with or contradictory to whatever is stated in this written statement, and no statement, or contention, not specifically denied by the opposite party, shall be deemed to have been admitted, merely for want of a specific traverse.

 

That the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed under section 26 of Consumer Protection Act. In the Samsung Washing Machine, if some defects are noticed, that will not automatically come within the meaning of manufacturing defect and there may be possibility for that defect due to mishandling, improper handling, or any other reasons also which could be rectified, and that is why, the Consumer

(Cont.....3)

-3-

Protection Act contemplates, expert opinion when the defect is not visible, when the complainant raised complaint and the service engineer of the opposite party 2 inspected the said Washing Machine. The problem in the washing Machine occurred due physical damages caused to the Washing Machine.

 

That it is humbly submitted that his Hon'ble Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986, hereinafter called the said Act.

 

That the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering opposite party. At this juncture it is pertinent to note that the complainant had purchased Samsung Washing Machine on 22/04/2014, model No-WA62H4200HB/TL, Serial No M000 at a consideration price of Rs.15,700/- (Rupees Fifteen Thousand and Seven Hundred Only). As per the complainant the said Samsung Washing Machine became out of order and that the said Washing Machine was not working properly. That the complainant also alleged that the said Washing Machine became inoperative.

 

That the complainant had also lodged a complaint at opposite party 2 service centre and proper service was provided to the complainant. That according to the complaint a technician from service centre visited the complainant's house to rectify the defects and informed the complainant that there were no manufacturing defects in the said unit and defects which happened had occurred due to physical damages and mishandling caused to the washing machine and would be repaired at some cost. Therefore, the defects caused to the washing machine had occurred due to physical damages and mishandling which is not included in the terms and conditions of the warranty of washing machine.

 

That it is humbly submitted before the Hon'ble Forum that the complainant has suppressed material facts, facts which only shows that there were no defects to the washing machine which is covered under the warranty period and defects if any found happened due to mishandling, physical and failure to take proper

 

(Cont.....4)

-4-

care, maintenance and violation of usage guidelines provided at the time of purchase to the complainant and also violation of warranty terms and conditions within the warranty period provided to the complainant. The complainant was given proper instructions on how to maintain, use the Samsung Washing Machine, which the complainant have failed to follow, and which resulted in damage to the Washing Machine by the complainant.

 

This only shows that there were no manufacturing defects or any defects in the Samsung Washing Machine at the time of sale and that no such defects arose due to the manufacturing defects. Thus, the present allegations of unfair trade practices and deficiency in service as alleged by the complainant in his complaint is a complete abuse of the process of law for illegal gains and to harass the opposite parties and which needs to be struck down by the Ld. Forum at the preliminary stage itself.

 

The opposite party has acted as per the terms and conditions of warranty and in compliance with law. Therefore, as per Sec.2(1)(g) of Consumer Protection Act these cannot be termed as deficiency in service.

 

That the complainant has not approached the Hon'ble Forum with clean hands and has suppressed the material facts just to misguide the Hon'ble Forum. And it is a settled legal preposition that 'one who seeks justice must come to the court with clean hands'. And as per the terms and conditions of the warranty, replacement or repair of washing machine free of cost under mishandling, physical was not mentioned. Moreover, defects due to mishandling, improper handling, or any other reasons, and defects which could be rectified, for such situation/condition replacement or repair of Samsung Washing machine is not mentioned in the warranty card as well.

 

The opposite party 2 here is willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of opposite party nor did they indulge into unfair trade practice.

 

(Cont.....5)

-5-

The opposite party No.2 shall be adducing further evidence substantiating the point that there were no manufacturing defects at the time of purchase of the washing machine. And the defects which had arose was due to physical damages and mishandling of the unit for which the opposite parties are not liable and any effort to shift liability for illegal gains should be struck down by the Hon'ble Forum at the preliminary stage itself.

 

That the present case is gross abuse to the process of law and has been filed with ulterior motives and malafide intentions and hence needs to be dismissed. The complainant in this case had stated that the complaint was filed for defect in the washing machine but suppressed the fact that the same happened due to physical damages and mishandling caused to the washing machine.

 

That the contents of the para 1 of the complaint regarding purchase details are all matters of record and does not require any specific traversing.

 

That the contents the complaint though does not concern the answering opposite party fully but is accepted to the extent that the complaint was lodged for defects in washing machine, but regarding the development of problem in the washing machine the answering opposite party refers to the preliminary objections mentioned above. The complainant may also be directed by the Hon'ble Forum to produce expert evidence.

 

That the averments of para 2 of the complainant regarding functioning of the washing machine, repair, charges paid etc. which are denied and disputed and is accepted to the extent that the complaint was lodged by the complainant and proper service was provided to him, the complainant may be put to strict proof of any contrary contention. The complainant may be directed by the Ld. Forum to produce expert evidence. As to contents regarding deficient service from opposite party side, the same are denied. The opposite party did not commit any deficiency in service to the complainant and is not responsible for any such deficiency in service or unfair trade practices. All communications by the complainant to the answering opposite party company- the same was handled as per company rules and regulations and the complainant was informed the

(Cont.....6)

-6-

 

warranty terms and conditions in detail and hence anything contrary is denied and disputed. The detail of the communication and management decision as was communicated to the complainant is mentioned under preliminary objections.

 

That the contents of para 3 are denied. The opposite party have time and again informed the complainant that the defects in the washing machine if any had occurred due mishandling and that warranty terms and condition does not cover for the same and that the complainant shall not be entitled for any free replacement due to mishandling of the washing machine. And the contention of the complainant for unfair trade practices and physical harassment are denied in full and the action of the opposite party was in accordance with the warranty terms and conditions.

 

That the answering opposite party or their agents, dealers, service centre has not committed any deficiency of service and unfair trade practice to the complainant and is not responsible or liable for the replacement of the product and complainant should be put to strict proof of the contention advanced.

 

That no cause of action ever arose against the answering opposite party.

 

That contents of para 4 and the prayer are denied. The opposite party shall not be liable for any replacement or to pay compensations as the defect if any occurred in the washing machine was due to the physical damages. And therefore, under the terms and conditions of the warranty of said washing machine it was not mentioned that free service/replacement would be provided in case of physical damages or mishandling done to the washing machine.

 

That it is stated that no cause of action ever arose against opposite party No.2 – Samsung India Electronics Pvt.Ltd. Or any other opposite party and there is no deficiency of service or negligence on the part of the opposite party or their officials, agents, in light of what is stated above and the same is not being repeated herein for the sake of brevity.

 

(Cont.....7)

 

-7-

 

So the second opposite party prayed for dismissal of complaint with exemplary cost and pass any other order or orders as this Forum may deem fit and proper.

 

The second opposite party relied on following judgments/orders of Hon'ble Supreme Court and National Commission.

 

1 . C.N.Anantharam Vs Fiat India Ltd., & Ors – AIR 2011 SC 523, (2011) 1 SCC 460.

 

2 . Bharathi Knitting Vs. D.H.L. Worldwide, (1996) 4 SCC 704 (SC).

 

3 . M.J.Abraham Vs Angel Agencies & Ors. (III (2000) CPJ 544).

 

4 . Classic Automobiles Vs. Lila Nand Mishra & Anr., (I (2010) CPJ 235 (NC)).

 

Complainant filed proof affidavit and examined as PW1 and marked copy of invoice No.111116 dated 22/04/2014 of the first opposite party for the purchase of above washing machine and marked as P1.

 

The second opposite party produced following documents.

 

1 . Copy of power of attorney given by the second opposite party in favour of

Mr. Anup Kumar Mathur and marked as Ext.R1.

 

2 . Copy of invoice No.1/TDP/624 dated 28/04/2019 of myG in favour of one

Dhanesh Gopinathan for sale of Samsung Mobile and marked as Ext.R2.

 

No oral evidence is adduced on behalf of the second opposite party and the case was posted for orders.

 

We have examined the contentions and perused documents filed from both sides.

 

(Cont.....8)

-8-

 

On a perusal of rival contentions of both parties and documents available on record, following points arise for consideration.

 

1 . Whether the dispute is a consumer dispute and fall within the ambit of Consumer Protection Act, 1986 and also whether this Forum has jurisdiction to entertain and adjudicate on the dispute?

 

2 . Whether the complainant is entitled to get an order directing opposite parties to remove the defects in goods or to refund the price of the goods to him?

 

3 . Whether the complainant is entitled to get compensation as prayed for? And

4 . Costs of the case?

 

Point No:1

 

On a plain reading of the definition of “Consumer” and “Consumer dispute”, it is clear that the complainant comes within the definition of “consumer” and it is a consumer dispute. Hence this Forum has ample power to entertain and adjudicate upon the issues raised in the complaint. So, the contention of the second opposite party is over ruled.

 

Point No:2

 

The second opposite party has admitted the purchase of above washing machine. The contention of the second opposite party that their service engineer after examination of the product informed that there were no manufacturing defect and the problem occurred due to physical damages caused to the washing machine is without any proof and if any such issue arose the second opposite party could have produced service report of the above service engineer. From this, it is clear that present contention is only an afterthought. Complaint with regard to defect in goods arises due to manufacturing defect. Contention to the contrary to be proved by the person denying the same, which is not done in this case.

 

(Cont.....9)

 

-9-

 

At the same time, the second opposite party admitted in para 13 of preliminary objection forming part of written version that they are willing to carry out the necessary repairs and replacement of the parts as per terms and conditions of the warranty manual. They have not denied the period of warranty of 5 years claimed by the complainant. But the defect is not cured even at this point of time. As per proviso of S.2(1) (r) (Viii), onus of proof lies heavily on opposite parties which is not discharged. All these lead to the conclusion that there was unfair trade practice and deficiency in service on the part of the opposite parties. On a perusal of Ext.R2, it is seen that it has no relevance to the present case.

 

Even though certain judgments/ orders cited above were relied on by the second opposite party, no copy thereof is produced. The second opposite party could not establish that those judgments are applicable to the facts of the present case. Besides, facts and circumstances of each case differs. So the contention cannot be accepted.

 

In the light of above discussions and findings, we direct the opposite parties to remove the defects in the washing machine in question free of cost within 30 days of receipt of this order and if it is not possible, to refund the price thereof to the complainant within the above period. Hence point No.2 is decided as above.

 

Point No:3

 

Since we found that there was unfair trade practice and deficiency in service, opposite parties are directed to pay Rs.3000/- (Three Thousand only) to the complainant as compensation.

 

 

 

 

 

 

(Cont.....10)

-10-

Point No:4

 

Considering the facts and circumstances of the case, we direct opposite parties to pay Rs.2000/- (Two Thousand only) as costs to the complainant within the above period, failing which all the amounts, should fetch simple interest @ 10% per annum till full realization.

 

In the result, complaint is allowed as above. Order accordingly.

 

Pronounced in the Open Forum on this the 27^th day of August, 2020.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL P., PRESIDENT -IN -CHARGE

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 -Mathew Thomas

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 -Copy of invoice No.111116 dated 22/04/2014 of the first opposite party

for the purchase of above washing machine.

 

On the side of the Opposite Party :

Ext.R1 - Copy of power of attorney given by the second opposite party in favour

of Mr. Anup Kumar Mathur.

Ext.R2 - Copy of invoice No.1/TDP/624 dated 28/04/2019 of myG in favour of one

Dhanesh Gopinathan for sale of Samsung Mobile.

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT