Karnataka

Belgaum

CC/561/2015

Vazeer A Gijoni - Complainant(s)

Versus

Chairman.Samsung India Electronics Pvt Ltd - Opp.Party(s)

B R Kapahi

24 Dec 2016

ORDER

                

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.561/2015

 

                     Date of filing: 20/11/2015

 

                                                                  Date of disposal: 24/12/2016

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT   -

Sri.Vazeer Ahmed Abdul Khader Gijoni, Age: 62 Years, Occ: Business, R/o: H.No.3889, Chirag Nagar, Kakatives Road, Belagavi.                     (Rep. by Sri.B.R.Kapahi, Adv.)

                                                    - V/S -

 

OPPOSITE PARTIES  -

1.           2.

The Chairman, Samsung India Electronics Pvt. Ltd., Having its registered Office at 2nd, 3rd and 4th Floor Tower “C”, Vipul Tech Square, Gulf Course Road, Sector 43, Gurgaon – 122002.                 (Rep. by Sri.K.V.Badiger, Adv.)   The Proprietor, Apes Refrigeration, Sharada Bhavan Complex, Shanivar Khoot, Belagavi.                                          (Ex-parte)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                    J U D G M E N T

 

 

By Sri. A.G.Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to pay Rs.47,000/- being the price of the Refrigerator and pay Rs.50/- per day from the date of representation i.e. 01.07.2015 till the date of payment as compensation for inconvenience and mental agony and Rs.5,000/- towards litigation expenses etc.,

 

2.      The facts of the case in brief are that;

 

           It is the case of the complainant is that, on 06.01.2011 the complainant had purchased the refrigerator from OP.No.2 under receipt No.459 for Rs.47,000/-, the same is manufactured by the OP.No.1 bearing Model No.RS20, NRPS5 and serial No.17874 ABZ 900 252 and OP.No.2, who is the Authorized Dealer of OP.No.1. But, within a few months from the date of purchase, the said refrigerator, started giving problem and on 20.11.2013, the complainant compelled to Op.No.2 who is the customer service provider of the OP.No.1 with a defect description as “No-Cooling” and complainant submits that, the said refrigerator was always having some or the other problem. Once again on 06.01.2014 the complainant was compelled to OP.No.1 who in turn intimated

defect was No cooling evaporator defect, thereupon the said refrigerator was got rectified and took it back.

 

          It is further case of the complainant is that, on 21.01.2014 the refrigerator started again giving trouble and because of the “non cooling” all the food items kept in the refrigerator where spoiled and decayed as the whole family of complainant had gone out of station for few days, after coming back, the complainant was constrained to take said refrigerator to Op.No.2 i.e. OP.No.1 intimated by OP.No.2 the defect description was due to “non cooling, Gas Leakage” and the refrigerator was delivered back on 06.02.2014 with a remark that, “Gas charging done, set made OK.

 

          Further it is case of the complainant is that, all these repairs attended by OP.No.2, the refrigerator never stopped giving intermittent troubles and finally on 11.03.2015 once again he was constrained to approach OP.No.2 who intimated that, defect description as “Internal Gas Leakage” and remarked that, earlier 3^rd party repair, but not success. The refrigerator was delivered back to complainant but at no moot of time, the complainant had ever taken the said refrigerator in question to any other 3rd party other then OP.No.2 customer service and he also noticed that, the said refrigerator also had body leakage.

 

Further it is case of the complainant is that, all efforts of contacting PVG Life Style Ltd., who is the authorized dealer of OP.No.1 products and even the registered notice sent to the said OPNo.1 and returned with an endorsement by the Postal Authority that, the address is not found and his contract number is also were not responding. The complainant had purchase such a big refrigerator, because of his huge family. But right from the beginning, the said refrigerator just gave trouble after trouble and caused physical, mental and financial problem as all food items were perished and countless and all times, the complainant was compelled to take the said refrigerator to OP.No.2 i.e. customer service and incur transportation and repairs charges etc., the complainant all his efforts to get his refrigerator repaired were failed and the OP.NO.1 & 2 are crystal clear instances of unfair trade practice and deficiency of service to the complainant. Hence, complainant has constrained to file this complaint.

 

3.      After issue of notice to the Opponents, the OP.No.1 has appeared through his counsel and OP.No.2 has neither appeared nor filed any version before this Forum, inspite of giving sufficient time. The Hon’ble District Forum considered the OP.No.2 is placed Ex-parte and OP.No.1 resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainant is not maintainable, since the complaint is filed beyond the period of limitation, the complaint is not maintainable in law and deserved to be rejected.

 

It is OP contended that, the complainant has purchased the refrigerator on 06.01.2011 is only one year conditional warranty and the said product warranty expired on 05.01.2012 after 46 months from the date of expiry of warranty period. The complainant is not entitled for free service as well as full refund of refrigerator price itself, due to expiry of warranty period long back, question of payment of certain compensation as claimed in the complaint does not arise.

   

The OP.No.1 further contended that, the complainant approached the service centre on 11.03.2015 after expiry of warranty period. Immediately on receipt of service request, the service engineer visited the customer place and after thorough inspection they found “Internal Gas Leakage” problem and found that, it is not repairable and they have made an endorsement to raise approval for refund of product cost in the service request record. These information is available in the customer service record that, apart in the same column there is another endorsement about third party repair, which mean the complainant has availed some service from third party before approaching the company service centre and after making all these endorsements, the service engineer has taken signature of the customer/complainant to the said job sheet.

 

It is further OP.No.1 contended that, if any defect is found within warranty period and same could not be rectified. However, after expiry of warranty period and the product is not repairable, under such circumstances the prevailing depreciation rules of the company will be binding on the purchaser to accept as a commercial solution in lieu of repairs and as per document No.2, the refrigerator is un-repairable. Accordingly, the company has offered depreciation value at 90% of the product price and agree to pay the balance amount to the complainant. But, the complainant did not agree from the said proposal, on the other hand the complainant demanded to consider 40% instead of 90%, demand of the complainant is beyond the company warranty policy. Therefore, the said demand  is declined. Due to above said reason OPs not settled at the earliest. OP further submits that, after inspection of the refrigerator on dtd: 12.03.2015, the service engineer has taken declaration letter from the complainant in respect of depreciation value, now how complainant can claim full refund of product costs that too the product is out of warranty, the said letter produced for consideration as document No.3. Further OP submitted that, the refrigerator is more than 4 years old as on the date of filing the complaint. As such as per warranty condition the company offered commercial settlement in the lieu of repairing the product, when the complainant is aware about non reparable condition of his fridge as well as company offer to settle the issue, now the complainant has filed this complaint before this Forum with allegation about deficiency of service as well as alleges un-fair trade practice.

 

The OP further submitted that, the complainant has failed to establish how OP is committed breach of trust as per company warranty terms and condition is not explained. Therefore, under above circumstances prays that, the complaint be kindly dismissed with exemplary costs.       

 

5.      Both parties have filed their affidavit in support of their case, and on behalf of complainant has produced 10 documents which has marked as Ex.P-1 to Ex.P-10, for sake of our convenience we have marked P & R series. On behalf of the Op.No.1 has also filed 03 documents and same are marked as Ex.R-1 to Ex.R-3. The adv. for complainant has argued the matter and OP.No.1 has filed his written argument and argument of OP.No.1 taken as heard.            

 

Now, on the basis of these facts, the following points are arise for our consideration:

 

1.  Whether the complainant has proved that, there is negligent and deficiency of service on the part of Ops for not replace the refrigerator or refund the cost?

 

2. What order?

 

6.      Answer to the above Points:-

 

1.  Partly Affirmative.

 

2.  As per final Order.

 

 

REASONS:-

 

7.      Point No.1: After perusing the evidence of both parties and scanning the written arguments, it is evident and admitted fact that, the complainant has purchased the refrigerator from Op.No.2 for Rs.47,000/-, the same is manufactured by the OP.No.1 bearing Model No.RS20, NRPS5 and serial No.17874 ABZ 900 252 in this respect the complainant has produced receipt No.459 which is marked as Ex.P-1, which is not in dispute. It is also not in dispute that, the complainant is a consumer as is defined under the provisions of the C.P. Act.

 

          Now the case of the complainant is that, the said purchase refrigerator with one year conditional warranty as per warranty card which is marked as Ex.P-6 and further case of the complainant that, within few months from the date of purchase the refrigerator, started giving problem and on 20.11.2013, the complainant compelled to Op.No.2 who is the customer service provider of the OP.No.1 with a defect description as “No-Cooling” and complainant submits that, the said refrigerator was always having some or the other problem. Once again on 06.01.2014 the complainant was compelled to OP.No.1 who in turn intimated defect was No cooling evaporator defect, thereupon the said refrigerator was got rectified and took it back. When, the complainant himself admitted that, after rectification the defect the said refrigerator taken back then how complainant could have alleged that, there is deficiency on the part of the OPs and un-fair trade practice, but the complainant has not established as alleged in the complaint.

 

However, the OP.No.1 has given proposal to the complainant that, under the warranty condition when such product is not repairable then, the company has to give a proposal to the purchaser in respect of same, it is mentioned in the warranty condition which has already marked as Ex.P-6, wherein it is clearly mentioned as “in the event of any unforeseen circumstance and spares not being available the company’s prevailing depreciation rules will be binding on the purchaser to accept as a commercial solution in lieu of repairs.”  And even the OP.No.1 has admitted in his written version, therefore in our consider view, when the refrigerator is not repairable then, it would be taken back the refrigerator by the OPs and settle the dispute as per company’s prevailing depreciation rules. More-ever the complainant has agreed with the proposal form and signed on the said declaration letter dtd: 12.03.2015 which is marked as Ex.R-3, the said letter clearly mentioned that, “agreed for depreciation as per company’s policy if product out of warranty”. Under such circumstances there is not any deficiency of service as alleged by the complainant? Therefore, we are in the consider view that, if we award and settle the matter as per declaration letter given by complainant to the OPs. It is suffice to give on depreciation basis to the complainant by taking unrepeatable refrigerator.

 

Now, the question of quantum of depreciation to what extent, the depreciation has to give. The case of the OPs that, as per company’s prevailing depreciation rules will be 90%, the prevailing depreciation rules of the company will be binding on the purchaser to accept as a commercial solution in lieu of repairs and as per Ex.R-2, the said refrigerator is un-repairable. Accordingly, the company has offered depreciation value at 90% of the product price and agree to pay the balance amount to the complainant. for that proposition, the OP.No.1 has not substantiate the same by producing the affidavit evidence and material documents to aceept with satisfactory. Therefore, the said contentions are not acceptable and OP.No.2 has failed to prove to hold that, 90% depreciation has to give to the complainant. So, in our consider view, when there is no any strict rule or provision towards the depreciation, it would be proper, if we award 20% i.e. the cost of the refrigerator of Rs.47,000/- it comes to Rs.9,400/- it would meet the ends of justice and proper.

 

          Looking to the fact and circumstance we have observed that even the OP as agreed that, after expiry of warranty period and the product is not repairable, under such circumstances the prevailing depreciation rules of the company will be binding on the purchaser to accept as a commercial solution in lieu of repairs as the refrigerator is un-repairable. Therefore, we are of the opinion that, the 20 % cost of the refrigerator has to give to the complainant by taking back old refrigerator from the complainant and the complainant is not entitled towards any mentally agony, for the reason that, the complainant has not mentioned in respect of declaration letter given to the OPs in respect of settlement by way of agreed for depreciation as per company’s policy and the same is suppressed by the complainant. Therefore, the complainant is entitled only to receive Rs.1,000/- cost of the proceedings. Accordingly, we answer this Point No.1 in partly affirmative. Hence, we proceed to pass the following;

 

 

O R D E R

 

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by partly allowed.

 

The OPs are hereby directed to pay 20% of the cost of refrigerator i.e. ( 20% of Rs.47,000/- ) = Rs.9,400/- to the complainant.

 

Further, the OPs are hereby directed to pay a sum of Rs.1,000/-  being the cost of the litigation to the complainant.

 

          The order shall be complied within 08 weeks from the date of this order.

 

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 24^th day of December, 2016).

 

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.