Kerala

Idukki

CC/4/2019

Paul Jacob - Complainant(s)

Versus

Bismi appliances - Opp.Party(s)

01 Jun 2023

ORDER

DATE OF FILING : 7.1.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   1^st  day of June,  2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.4/2019

Between

Complainant                                        :       Paul Jacob, S/o. Jacob,

                                                                   Mekkunnel House,

                                                                   Kaithakode Junction,

                                                                   Thodupuzha East P.O., Idukki.        

          (By Adv: Johnson Joseph)

And

Opposite Parties                                   :   1. The Proprietor,

                                                                   Bismi Appliances, Kalarickal Bazar,

                                                                   Thodupuzha P.O., Idukki.

                                                                 2.  Samsung India Electronics Pvt. Ltd.,

                                                                     A-25 Ground Floor, Front Tower,

                                                                     Mohan Co-operative Industrial Estate,

                                                                     New Delhi – 110044.

            (By Advs: K.M. Sanu, AbheekSaha

& K.S. Arundas)

     3.  TVS Electronics,

                                                                   Velloorkunnam,

                                                                   Muvattupuzha P.O.,

                                                                     Ernakulam - 686673

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complainant’s case is briefly discussed hereunder :

 

          Complainant had purchased a refrigerator manufactured by 2^nd opposite party and sold by 1^st opposite party in August 2016.  Actual price of the refrigerator was more than Rs.1 lakh, but 1^st opposite party had informed complainant that it is available at a discounted price of Rs.69,850/- owing to festival season.  He also represented that the body of refrigerator was made of steel and there are no chances of colour fade or rusting, that the compressor had a warranty of 10 years given by the manufacturer.  1^st opposite  further assured the complainant that there will be no problem or complaint regarding                                                                                                                   (cont….2)

• 2  -

body of the fridge.  Believing this, complainant had purchased the fridge.  However, in September 2017, complainant noticed that paint was peeling offand getting faded in some portions from bottom door portion near to compressor.  When informed, 1^st opposite party had stated that this was owing to defrosting and that fading of colour will soon stop.  Unfortunately, paint started fading more quickly and it had spread to the top and handle side of the refrigerator.  Complainant had asked the 1^st opposite party to replace the refrigerator with a new one.  1^st opposite party told the complainant that they will register the complaint with 2^nd opposite party and their service staff will come and look into the complaint.  Thereafter some employees of 3^rd opposite party, which apparently is a service centre for electronic home appliances, had shown up at the residence of complainant and had inspected the refrigerator.  They had taken its photographs and informed the complainant that to rectify the defect, more than Rs.15,000/- will have to be paid towards repair.  Complainant had replied that he does not want to get the defect rectified, but a new fridge in place of defective one.  However,  opposite parties were not prepared to replace the fridge.  Complainant had purchased this costly refrigerator believing that it was of best quality.  That its paint will not fade and body parts will not get rusted, as promised by 1^st opposite party.  He further submits that both 1^st and 2^nd opposite parties were well aware that the paint job was not of requisite quality and that it will fade very soon.  Suppressing this, they had misrepresented the facts to complainant about quality of the paint job.  These acts constitute unfair trade practice and deficiency in service from the side of 1^st and 2^nd opposite parties.  Complainant therefore prays for a direction against 1^st and 2^nd opposite parties to return Rs.69,850/- paid by complainant with 12% interest.  He also seeks a direction against them to pay Rs.50,000/- as compensation for mental agony suffered by him owing to unfair trade practice and deficiency in service on their part along with Rs.25,000/- litigation costs.

 

          2. Upon notice, opposite parties 1 and 2 have entered appearance.  Since 3^rd opposite party had not appeared despite service, it was set exparte.  2^nd opposite party has filed a written version.  1^st opposite party has not filed any written version.  Case of 2^nd opposite party as narrated in written version is briefly reproduced hereunder :

 

          2^nd opposite party contends that it has been wrongly impleaded in this case.  There is no expert opinion as contemplated under Section 26 of the Act.  Hence it cannot be presumed that refrigerator has manufacturing defects.  Moreover, alleged defects will not amount to a manufacturing defect.  Written version contains quotes from the judgment of Hon’ble Supreme Court to the effect that a manufacturing defect cannot be considered as existing inherently in the absence of any major or serious flaws which would render the goods unusable.  Complainant has only stated that colour of refrigerator was peeling off.  However, he had omitted to mention that this was owing to negligent usage and violation of user guidelines for the product.  It is also contended that                                                                                                                (cont…3)

• 3  -

on the basis of decision rendered by Hon’ble Supreme Court, the burden to prove manufacturing defect rests upon the complainant.  Opposite party submits that complainant had lodged a complaint with  service centre and in response to the same proper service was provided to him.   After inspection of refrigerator, service centre has noted that there were physical damages to outer body of refrigerator.  That these damages and discoloration of outer body was due to mishandling.  Service centre had informed complainant that there were no manufacturing defects and defects noticed were repairable upon payment of requisite charges. He was further informed that those damages were caused due to mishandling.  That apart, those damages are not covered under warranty.  Besides, in the present case, warranty of the product had expired before complaint was registered with regard to the issues alleged by purchaser.  Date of purchase was 22.8.2016.  Warranty coverage was only for 1 year.  Complaint was raised in Nov.2018.  Only compressor of refrigerator has 5 year warranty from the date of purchase.  2^nd opposite party was willing to carry out necessary repairs and replacement of parts in accordance with terms and conditions of warranty.  In this case, charges were to be paid as the damages complained were  after one year of warranty to the body of product as such.  Complainant had refused to pay such charges and therefore damages complained of cannot be rectified.  Moreover, these damages were occasioned due to mishandling of the refrigerator and its use in violation of user guideline contained in the operation manual.  Besides, damages owing to physical mishandling and unauthorized user are not covered by terms of warranty.  There is no cause of action for this complaint.  2^nd opposite party has not resorted to unfair trade practice. There is no deficiency in service from its part.  Hence complaint is to be dismissed with exemplary costs.

 

          3.  After filing of written version by 2^nd opposite party, case was posted for evidence.  Before that, sufficiency opportunity was afforded to both sides to take steps.  Though the complainant had availed repeated opportunities to tender evidence in person, no oral evidence was given from his side.  Copy of bill / invoice produced along with complaint was marked as Ext.P1 and initial commission report along with photographs were marked as Ext.C1 series - 9 in numbers.  Subsequent report of expert commissioner was marked as Ext.C2 series - 3 in numbers.  2^nd opposite party also has not given evidence in person.  Documents produced by 2^nd opposite party were marked as Ext.R1 to R5 series – 2 in numbers. Thereafter evidence was closed.  We have heard the complainant and 2^nd opposite party.  Now the points which arise for consideration are :

1)  Whether the refrigerator purchased by complainant which was manufactured by 2^nd opposite party has any manufacturing defects ?

2)  Whether the refrigerator has any other defects ?

3)  Whether there was any unfair trade practice or deficiency in service from the side of  opposite parties ?

4)  Whether complainant is entitled for the reliefs prayed for in the complaint ?

5)  Final order and costs ?                                                                         (cont….4)

- 4  -

4.  Point Nos.1 to 4 are considered together :

 

          Before entering into the merits of the case, it would be apposite to refer the documents admitted in evidence from both sides.  As mentioned earlier, Ext.P1 is the only document marked from the side of complainant.  It is a tax invoice dated 22.8.2016 with regard to sale of the refrigerator for a total consideration of Rs.70,000/-.  Complainant claims that he got the refrigerator at a discounted price of Rs.69,850/-,which may be true. During pendency of these proceedings, initially an advocate commissioner was appointed for inspection of the fridge.  Ext.C1 is the report pertaining to the said inspection.  Ext.C1(a) to C1(i) are 8 photographs and CD containing digital impression of photographs taken at the instance of commission as per directions given in the commission application.

 

          Subsequently, upon application by complainant, one Mr. Baiju Joseph, Instructor of Tronic Institute of Engineering, Thodupuzha was appointed as expert commissioner to inspect and report about the alleged defects of the refrigerator.  Expert had inspected the refrigerator with notice to 2^nd opposite party on 14.4.2022 in the presence of complainant and his counsel.  It is seen from the report that 2^nd opposite party or his counsel were not present for inspection.  Ext.C2 is the report of expert commissioner.  Ext.C2(a) is a computer print out taken of notice sent electronically by expert commissioner to 2^nd opposite party regarding inspection and Ext.C2(b) is the commission order with carbon impression of the notice purportedly given by expert commissioner to parties.

 

          On the side of 2^nd opposite party, Exts.R1 to R5 series – 2 in numbers were admitted without formal proof as mentioned above.  Ext.R1 is photocopy of power of attorney executed in favour of authorized signatory of 2^nd opposite party which had represented the concern in these proceedings.  Ext.R2 is photo print out of warranty information given by 2^nd opposite party.  Ext.R3 is copy of installation checklist given which bears signature of complainant.  Ext.R4 is customer service record card relating to the fridge along with estimate of repairs.  Ext.R5 and Ext.R5(a) are paper copies of 2 photographs of the portion of refrigerator where paint was found to be faded and peeled off. 

 

          The defects noticed in Ext.C1 and C2 and allegations in the complaint also are only with regard to the body portion of the refrigerator.  This cannot be considered as manufacturing defect which would warrant replacement of  unitor refund of it’s cost as such.  2^nd opposite party has a case that upon getting  complaint regarding  refrigerator from complainant, their service team had gone and inspected it.  They had, after inspection prepared an estimate with regard to cost of repairs, shown in R4.  However, complainant was not amenable to get the fridge repaired as he wanted a replacement                                                                                                                (cont…5)

• 5  -

with a new one, which according to us was not his entitlement.   Defect noticed are only with regard to peeling and fading of paint which according to him have occurred  prematurely.  He also complains of rusting.  However, in Ext.C1, defects noticed are only of peeling of paint and its fading.  Ext.C1(a) to (h) photographs support this findings.  In Ext.C2 also defect as such is with regard to discoloration of paint.

 

          According to 2^nd opposite party, refrigerator had sustained physical damages also apart from peeling and fading of paint.  However, there is no evidence to show that the body portion of refrigerator had sustained physical damages owing to mishandling by complainant.  2^nd opposite party does not say what is the nature of this mishandling and neither is this disclosed from Ext.R4 job card.  In Ext.R4 current defect is shown as door paint peeling and that customer demanded free of cost service.  Remarks of the service manager are also on these lines.  Along with Ext.R4, there is an estimate with regard to repairs which shows that repair costs will be approximately Rs.15039/-.

 

          In Ext.C2 expert commissioner had reported that fading and peeling of paint was not due to any mishandling by complainant.  Reason being, the paint on handle of refrigerator has not faded or peeled off, thoughthis was the most handled part of the refrigerator.  He would say that peeling of paint or its fading is of those body parts which may not require any physical handling by the person using the same.  Exts.P1(a) to P1(h) photos along with Exts.R5 and R5(a) photographs would also disclose that paint has faded only on  body portions where there are no chances of  physical contact often by users.  We also notice that though time was taken by 2^nd opposite party for filing objection upon Ext.C2 report, no objection were filed on the report of expert commissioner.  It is specifically mentioned in Ext.C2 that there was deficiency or defect in the painting procedure owing to which there was no proper painting of refrigerator at the time of manufacture.  This had resulted in peeling off and fading of the paint.  This finding remains unopposed by 2^nd opposite party. No steps were taken  to summon and examine the expert commissioner who had authored Ext.C2 report. Though the defects complained of and noticed by both commissioners are not serious defects of the product which could not be rectified and therefore the product unit as such is to be replaced,defect noticed is in the painting of refrigerator which had occurred during manufacturing process. Painting, jobwise or material wise, was inferior. 2nd opposite party has contended that body has warranty only for one year. These contentions are fallible for two reasons. Firstly, defect was present when the product was sold to complainant, though not noticeable. Secondly, user manual containing warranty conditions is given to a purchaser only after sale. 2^nd opposite party has no case that warranty conditions are explained to prospective customers before sale.  That being so, despite the fact that warranty for the body of refrigerator was only for 1 year, 2^nd opposite party was bound to rectify the defects free of cost, as these are not binding upon complainant

                                                                                                                   (cont….6)

• 6  -

          Though the defect cannot be termed as manufacturing defect as such, we find that inferior paint work was done at the time of manufacture, which had caused the paint to peel off or fade just after one year of its purchase by complainant.  There is no proof of any mishandling by complainant or misuse in violation of user guidelines as alleged by 2^nd opposite party.  The fridge as per Ext.P1 retails at Rs.70,000/-.  Goods which are so expensive should also conform to levels of expected quality also.  Manufacturer cannot hide behind  warranty to exonerate themselves from the liability of selling inferior goods.   In the instance case, apart from alleged lapse of period, 2^nd opposite party also alleged mishandling of product by complainant for which there is no evidence.  Passing of goods as quality product,whereinfactthey do not possess the requisite quality will certainly amount to unfair trade practice.  We believe the complainant when he says that the 1^st opposite party had introduced the product as of superior  quality with regard to its manufacturing process, compressor and body parts.  It is a normal practice for dealers to high light the qualities of a product, more so when it is expensive, for the purpose of sale.  In the present case 1^st opposite party had after entering appearance has not filed any written version.  Therefore, it has to be taken that the allegationsin Ext.P1 and both commission reports are not challenged by 1^st opposite party.  Both 1^st and 2^nd opposite parties are liable in this case as dealer and manufacturer respectively for a product passed off to the complainant which does not possess the quality which the 1^st opposite party had assured that it possesess. As mentioned earlier, 2^nd opposite party was responsible for the issue since  paint work  of refrigerator was not done, up to the standard required which had resulted in the paint peeling off and fading,just after one year of its use.  As far as 3^rd opposite party is concerned, no relief is claimed against it and hence we do not think that it will be liable for seeking payment of repair charges as this was in accordance with terms of warranty given by 2^nd opposite party. 

 

          To conclude, we find that complainant has succeeded in proving that the refrigerator sold to him by 1^st opposite party which was manufactured by 2^nd opposite party had defectsin quality which was not brought to the notice of complainant when it was sold to him by 1^st opposite party.  Complainant is entitled in this case for getting adequate relief in this regard though he may not be entitled for a replacement of the entire unit as such.  We are not aware of the present condition of the product.Repair estimate of Rs.15,039/- was in the year 2019.  4 years have passed.  Under these circumstances, we are of the view that the complainant should be given relief in monetary terms  for getting the unit repaired and maintained, cost of which upon a fair estimate would be Rs.20,000/-.  Considering all circumstances, he will be entitled for a compensation from 1^st and 2^nd opposite parties of Rs.5000/- each along with litigation costs of Rs.2,000/- per party.  Point Nos.1 to 4 are answered accordingly.

 

 

                                                                                                                   (cont....7)

 

- 7  -

5.  Point No.5 :

 

          In the result, complaint is allowed in part, upon following terms :

 

1.  Opposite parties 1 and 2 are directed to pay an amount of Rs.20000/- to complainant towards cost of repairs of the refrigerator with interest at the rate of 12% per annum from the date of this complaint, i.e., 7.1.2019, till the date of payment or realisation.  Liability in this regard, of 1^st and 2^nd opposite parties shall be joint and several.

 

2.  Opposite parties 1 and 2 are further directed to pay a compensation of Rs.5,000/- each to complainant with interest at the rate of 12% per annum from the date of this order till payment or realisation as the case may be.

 

3.  Opposite parties 1 and 2 are further directed to pay Rs.2,000/- each towards litigation costs of the complainant.  This order shall be complied with by 1^st and 2^nd opposite parties within a period of 45 days beginning from the date of receipt of a copy of this order by them.  Parties shall take back extra copies filed, without delay.

 

                    Pronounced by this Commission on this the  1^st   day of June, 2023

                                                                                       Sd/-

          SRI. C. SURESHKUMAR, PRESIDENT

                                       Sd/-

                                                                SMT. ASAMOL. P., MEMBER

                                                                                      Sd/-                                                                                                SRI. AMPADY. K.S., MEMBER

APPENDIX

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -  Copy of bill / invoice dated 22.8.2016.

On the side of the Opposite Party :

Ext.R1    -  Copy of power of attorney.

Ext.R2    -Photo print out of warranty information given by 2^nd opposite party. 

Ext.R3   -  Copy of installation checklist given which bears signature of complainant.

Ext.R4   -  Customer service record card relating to the fridge with estimate of repairs. 

Ext.R5 & R5(a) - Paper copies of 2 photographs of the portion of refrigerator

                  where paint was found to be faded and peeled off. 

                                                                             Forwarded by Order,

 

 

                                                                         ASSISTANT REGISTRAR