Date of Filing 17.12.2012

                                                                                                             Date of Disposal: 18.03.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                          …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIUR.P.MURUGAN, M.Com, (ICWA), BL.,                                                                     ……MEMBER-II

RBT/CC.No.19/2024

THIS MONDAY, THE 18^th DAY OF MARCH 2024

Mr.S.Kumar @ S.Kumarasamy,

No.11-A, Pump House Road,

Shencottai -627 809,

Thirunelveli District.                                                                                ......Complainant.

                                                                                   //Vs//

1.BSH Household Appliances Manufacturing Pvt. Limited,

    Arena House, 2^nd Floor,

   Plot No.103, Road No.12,

   MIDC, Andheri East.

   Mumbai – 400 093.

2.The Manager – Service,

    BSH Bosch and Siemens Home Appliances Group,

    New No.7, Old No.4,

    2^nd Floor, Palat Shankaran Street,

    Mahalingapuram, Chennai 34.                                                    ……Opposite parties.

Counsel for the complainant                                    : M/s.M.Swaminathan, Advocate.

Counsel for the 1^st opposite party                           : M/s.Rajeni, Advocate.

Counsel for the 2^nd opposite party                          : Exparte.

This complaint has been filed before DCDRC, Chennai (North) as CC.No.270/2022 and transferred to this commission by the administrative order in RC.No.J1/3145/2023 dated 09.11.2023 of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as RBT/CC.No.19/2024 and this complaint coming before us finally on 04.03.2024 in the presence of M/s.M.Swaminathan, counsel for the complainant  and M/s.Rajeni, counsel for the 1^st opposite party and 2^nd opposite party was set exparte for non appearance upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY Tmt. Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in selling a defective product  along with a prayer to direct the opposite parties to refund a sum of Rs.34,500/- being the cost of the product and to pay a sum of Rs.4,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.20,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2 Aggrieved and dissatisfied with the delivery of a defective Refrigerator by the opposite parties the present complaint has been filed.

3. Complainant on 14.03.2009 from the Authorized Dealer VASANTH & CO purchased a SIEMENS Refrigerator model KS 36 U (400L) for a sum of Rs.34,500/- and the same was installed in the complainant’s house. Within a short span of installation the Refrigerator stopped its functioning.  Immediately the same was informed to the opposite parties and opposite party’s technicians attended the problem.  However again the Refrigerator gave trouble and was not functioning properly.  Again it was attended by the technicians of the opposite parties and nearly for 5 to 6 times it was kept at the service station.  However the problem could not be solved and for more than 3 times, the compressor was changed.  Thus aggrieved by the non-functioning of the Refrigerator completely the complainant sought for replacement which was orally agreed by the opposite parties.  But later on they denied the replacement.  Hence after issuance of legal notice the present complaint was filed alleging deficiency in service against the opposite parties with a prayer to refund the cost of Refrigerator along with a sum of Rs.4,00,000/- compensation and Rs.20,000/- towards cost.

The crux of the defence put forth by the 1^st opposite party:-

4. The opposite parties filed version disputing the complaint allegations contending inter alia that the complaint was false and that the Refrigerator did not possess any manufacturing defects as alleged by the complainant.  It is their defence that the problem arose only due to frequent power failure which resulted in default of the compressor.  It was stated by them that as the Refrigerator was often opened and closed and the doors were kept open for a long time, fault occurred with the compressor. Further they also raised an issue of territorial jurisdiction as the product was purchased and serviced at Thirunelveli.  It is their contention that when even the complainant complained of any fault, the same was immediately attended by the opposite party.  They also alleged that the complainant did not handle the Refrigerator properly.  Further it was stated by them that they even had replaced the compressor 3 times only to see that the customers grievances is rectified. Thus they sought for the complaint to be dismissed.

5. On the side of the complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. The opposite parties filed proof affidavit and documents marked as Ex.B1 to Ex.B4 were submitted.  The 2^nd opposite party was set exparte on 16.10.2023 for non appearance and non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1)    Whether the alleged deficiency in service on the part of opposite parties by the complainant in selling a defective product with manufacturing defects has been successfully established by the complainant by admissible evidence?

2)    If so, to what relief the complainant is entitled?

 Point No.1:-

6. Heard the oral arguments and perused the pleadings and material evidence produced before this Commission.

7. On perusal of the documents filed by the complainant it is seen that vide Ex.A1 the complainant had purchased the product on 14.03.2009 for a sum of Rs.34,500/-.  Further vide Ex.A2 it is seen that the complainant had informed about the cooling problem and the defects found in the Refrigerator seeking for replacement of the product and also produced the Job Card in support of the same. The Job cards were also produced in proof of the defects found in the Refrigerator.

8. It is seen that the Refrigerator started giving problem in 2010 itself and the compressor which was an integral part of the Refrigerator was replaced thrice even as per the admitted version of the opposite parties. Vide email dated 08.11.2012 the opposite party’s person had informed that as he was in camp at Mumbai, will discuss with his technician and solve the issue raised by the complainant through email on 16.08.2012. In earlier email sent by the opposite parties also was on the same line stating that they are working to give a proper solution to the complainant.  On 01.11.2012 an email was sent to the complainant stating that they agreed to refund the entire cost of the appliance i.e. Rs.34,500/-as a gesture of goodwill and also with an additional sum of Rs.15,500/- for the inconvenience caused.

9. Thus it is sufficiently proved by the complainant that the opposite parties had acknowledged the complaints about the manufacturing defect that existed in the product.  In such circumstances the version filed by the opposite parties that the product has to be inspected by a technician to know about the defects could not be considered as a valid defence. Therefore, the manufacturing defect in the product was clearly established and also seen that the same could not be rectified even after several services by the opposite parties which was evident by the Job Cards. Hence we have no hesitation to hold that the opposite parties had clearly committed deficiency in service in not replacing the same as assured by them at an earlier point of time.

10.  Merely attending the complaints as and when raised by the customers will not absolve the opposite parties from their liability as they are responsible for the defects and non rectification of the same in the Refrigerator. The defence raised by them for the first time in their version that due to problem in the electricity supply and due to improper handling by the complainant the problem in the Refrigerator arose also could not be accepted when it is clearly established that the product started giving trouble within a short span of the purchase and installation.  Thus we hold that there is clear deficiency in service on the part of the opposite parties in selling a defective product and failing to replace the same when it is found that the defect could not be rectified in entirety.  Thus we answer the point accordingly in favour of the complainant and as against the opposite parties.

Point No.2:-

11. With respect to the relief to be granted it is seen that the complainant sought for refund of the amount along with Rs.4,00,000/- compensation and Rs.20,000/- cost.   However, in the facts and circumstances we direct the opposite parties to refund the cost of Refrigerator Rs.34,500/- with 9% interest from the date of purchase to the complainant along with a compensation of Rs.25,000/- for the mental agony and hardship caused to the complainant.  We also award Rs.10,000/-towards cost. Complainant directed to return the product to the opposite parties if he is in possession of the same.

In the result, the complaint is partly allowed against the opposite parties 1 & 2 jointly and severally directing them

a) To refund the cost of Refrigerator Rs.34,500/- (Rupees thirty four thousand and five hundred only) with 9% interest from the date of purchase within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainant;

 c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 12% will be levied on the said amount from the date of purchase till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 18^th day of March 2024.

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MEMBER-II                                        MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

            List of documents filed by the opposite parties:-

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MEMBER-II                                              MEMBER-I                                      PRESIDENT