PER:
Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant has purchased an LG Refrigerator GL 1472QPZX and LG fully automatic washing machine W/M T80SJSFIZ on dated 8.9.2020 as per invoice No. 2193 dated 8.9.2020 for an amount of Rs. 70,000/-. The opposite parties had given guarantee on the said washing machine. On the next day of purchase of said automatic washing machine, it started giving electric shock and complainant immediately informed the opposite party No. 1 about the fault and said opposite party No. 1 assured the complainant that it may happen due to transportation of machine and soon assured to solve the problem by sending mechanic at the door step of complainant. The complainant waited the mechanic who was to be sent by the opposite party No. 1 up to 4-5 days after lodging oral complaint before said opposite party but nobody came the house of complainant. Again complainant called the opposite party No. 1 on telephone and remained him the matter but again the said opposite party linger on the genuine request of the complainant. The complainant stopped using the said washing machine since the purchase as it may dangerous to human life as it was giving strong electric shock when it is used by touching its body. The complainant is an aged person about 72 years and shown his inability to reach in person to the shop of opposite party No. 1 and to admit his genuine request for repair of washing machine soon and then said opposite party provided the service centre/ customer care number to complainant and told to call them and then the complainant made a call to customer care/ repair centre and a mechanic visited the house of the complainant but again after repair, machine started giving electric shock and then again the complainant called mechanic by lodging complaint to customer care number and again mechanic visited and repaired the machine and after some days machine again started giving shock and again mechanic visited twice and shown his inability to find out the fault in machine and then the complainant again contacted opposite party No. 1 and requested to change or pay back the amount of Rs. 25,500/- which was paid again the said product but the opposite party No. 1 did not replace the machine with new one nor paid his amount back and flatly refused the genuine request of the complainant. After final refusal from opposite party, the complainant sent a legal notice on dated 2.4.2021through his counsel to both the opposite parties in which the said request was made to replace the faulty product with new one or to pay back the amount paid by the complainant but both the opposite parties instead of receipt of said legal notice did not pay heed to the genuine request of the complainant rather opposite party No. 2 replied the legal notice of the complainant that product has been started working properly which is totally wrong, the product till the date is not in working condition having same fault and is not being used due to electric shock. The complainant has prayed the following relieves:-
- The opposite parties be directed to refund the price of the phone i.e. 25,500/- to the complainant with interest @9% from the date of purchase
- The opposite parties be directed to pay Rs. 20,000/- as compensation to the complainant for causing harassment.
- The opposite parties be directed to pay Rs. 20,000/- as litigation expenses to the complainant.
Alongwith the complaint, the complainant has placed on record affidavit Ex. CW1, invoice 2193 dated 8.9.2020 Ex. C-1, legal notice dated 2.4.2021 Ex. C-2, Reply of legal notice Ex. C-3.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the complaint filed by the complainant is not maintainable either in law, facts and circumstances of the case and is liable to be dismissed in limine. The alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. This opposite party company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. This opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. The complainant has suppressed, distorted and concealed vital and material facts germane to the issue. The present complaint is not maintainable since the alleged defective machine has not been got inspected from the approved laboratory by the complainant as is required under Section 13(1)(c) of the Consumer Protection Act. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective machine/ faulty workmanship. There is no problem in the alleged product and matter resolved to be satisfaction of the complainant. The opposite party No. 1 had neither given any performance guarantee/ warranty/ assurance regarding the said product to the complainant nor authorised any person to give any guarantee/ warranty/ assurance in this regard. In case of any defect or problem, the opposite party No. 1 being the dealer has no any responsibility rather the manufacturing company or service centre is responsible for service if required. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. The opposite party No. 1 company manufactures the largest range of electronics products in India and enjoys the highest brand performance for superior quality, appearance and long life. The product of the company adhere to strict standard of quality and is free from any manufacturing defect. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 1 has placed on record affidavit of Naresh Chawla Ex. OP1/1
3 The opposite party No. 2 appeared through counsel and filed written version by interalia pleadings that the complainant has got no cause of action against the replying opposite parties, the present complaint filed by the complainant is an abuse of process of law and has filed the false and frivolous complaint and same is liable to be dismissed. The complainant involved complex question of law and facts as such, this commission does not have the jurisdiction to try and entertain the present complaint. The complaint is not in proper form and bad for non joinder of necessary party, the authorised service centre is the necessary party and has been left for reasons better known to the complainant, as such, the complaint merits dismissal on this score only. The complainant was not given any guarantee of any kind only warranty obligations were assured as per warranty card given to the complainant which has been mischievously concealed. The product has sold on limited warranty basis and the service engineer of service centre visited complainant whenever the complaint was lodged and on receipt of the legal notice and found the product to the satisfaction of complainant and there remains no problem in the produce to be resolved. As per the warranty obligations the complaint was to be lodged with the authorised service centre and not to any other party. The product was sold on limited warranty basis and the service engineer of service centre visited complainant whenever the complaint was lodged and on receipt of the legal notice and found the product to the satisfaction of complainant and there remains no problem in the product to be resolved. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 2 has placed on record affidavit of Harpreet Singh Area Service Head L.G. Electronics India Pvt. Limited Amritsar Ex. OP2/1
4 We have heard the Ld. counsels for the complainant and opposite parties and have carefully gone through the record placed on the file.
5 Ld. counsel for the complainant contended that the complainant has purchased an LG Refrigerator GL 1472QPZX and LG fully automatic washing machine W/M T80SJSFIZ on dated 8.9.2020 as per invoice No. 2193 dated 8.9.2020 Ex. C-1 for an amount of Rs. 70,000/-. On the next day of purchase of said automatic washing machine, it started giving electric shock and complainant immediately informed the opposite party No. 1 about the fault and said opposite party No. 1 assured the complainant that it may happen due to transportation of machine and soon assured to solve the problem by sending mechanic at the door step of complainant. He further contended that the complainant waited the mechanic who was to be sent by the opposite party No. 1 up to 4-5 days after lodging oral complaint before said opposite party but nobody came the house of complainant. Again complainant called the opposite party No. 1 on telephone and remained him the matter but again the said opposite party linger on the genuine request of the complainant. The complainant stopped using the said washing machine since the purchase as it may dangerous to human life as it was giving strong electric shock when it is used by touching its body. He further contended that the complainant is an aged person about 72 years and shown his inability to reach in person to the shop of opposite party No. 1 and to admit his genuine request for repair of washing machine soon and then said opposite party provided the service centre/ customer care number to complainant and told to call them and then the complainant made a call to customer care/ repair centre and a mechanic visited the house of the complainant but again after repair, machine started giving electric shock and then again the complainant called mechanic by lodging complaint to customer care number and again mechanic visited and repaired the machine. He also contended that after some days machine again started giving shock and again mechanic visited twice and shown his inability to find out the fault in machine and then the complainant again contacted opposite party No. 1 and requested to change or pay back the amount of Rs. 25,500/- which was paid again the said product but the opposite party No. 1 did not replace the machine with new one nor paid his amount back and flatly refused the genuine request of the complainant. After final refusal from opposite party, the complainant sent a legal notice on dated 2.4.2021 (Ex. C-2) through his counsel to both the opposite parties in which the said request was made to replace the faulty product with new one or to pay back the amount paid by the complainant but both the opposite parties instead of receipt of said legal notice did not pay heed to the genuine request of the complainant rather opposite party No. 2 replied the legal notice of the complainant that product has been started working properly which is totally wrong, the product till the date is not in working condition having same fault and is not being used due to electric shock and prayed that the present complaint may be allowed.
6 Ld. counsel for the opposite party No. 1 contended that the alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. This opposite party company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. This opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. The complainant has suppressed, distorted and concealed vital and material facts germane to the issue. The present complaint is not maintainable since the alleged defective machine has not been got inspected from the approved laboratory by the complainant as is required under Section 13(1)(c) of the Consumer Protection Act. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective machine/ faulty workmanship. There is no problem in the product and matter resolved to be satisfaction of the complainant. The opposite party No. 1 had neither given any performance guarantee/ warranty/ assurance regarding the said product to the complainant nor authorised any person to give any guarantee/ warranty/ assurance in this regard. In case of any defect or problem, the opposite party No. 1 being the dealer has no any responsibility rather the manufacturing company or service centre is responsible for service if required. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. The opposite party No. 1 company manufactures the largest range of electronics products in India and enjoys the highest brand performance for superior quality, appearance and long life. The product of the company adhere to strict standard of quality and is free from any manufacturing defect. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same and prayed that the present complaint may be allowed.
7 Ld. counsel for the opposite party No. 2 contended that the complainant involved complex question of law and facts as such, this commission does not have the jurisdiction to try and entertain the present complaint. The complaint is not in proper form and bad for non joinder of necessary party, the authorised service centre is the necessary party and has been left for reasons better known to the complainant, as such, the complaint merits dismissal on this score only. The complainant was not given any guarantee of any kind only warranty obligations were assured as per warranty card given to the complainant which has been mischievously concealed. The product has sold on limited warranty basis and the service engineer of service centre visited complainant whenever the complaint was lodged and on receipt of the legal notice and found the product to the satisfaction of complainant and there remains no problem in the produce to be resolved. As per the warranty obligations the complaint was to be lodged with the authorised service centre and not to any other party. The product was sold on limited warranty basis and the service engineer of service centre visited complainant whenever the complaint was lodged and on receipt of the legal notice and found the product to the satisfaction of complainant and there remains no problem in the product to be resolved and prayed that the present complaint may be dismissed.
8 We have gone through the rival contentions of the parties.
9 In the present case, it is not disputed that the complainant has purchased washing machine No. T805JSFIZ on 8.9.2020 vide invoice Ex. C-1. After purchasing the said Washing Machine same was started giving electric shock and there is some defect in the machine and the complainant has lodged complaints to the opposite parties and the complainant through his counsel Sh. Gurnam Singh severed a legal notice to the opposite parties which is Ex. C-2 and opposite parties through their counsel have also given reply to the said notice Ex. C-3. In their written version, the opposite party No. 2 has admitted that the service engineer of service centre visited complainant whenever the complaint was lodged and on receipt of the legal notice and found the product to the satisfaction of complainant and there remains no problem in the product to be resolved. As such from the admission of the opposite party No. 2 it is proved that the washing machine in question was not working properly and there was some problem in the said product. Any consumer would like to purchase a brand new product just to avoid any unnecessary hardship and inconvenience, so that the said product may work properly at least for a minimum period of two three years.
10 The expression ‘deficiency’ of services is defined under Section 2 (1) (g) of the Consumer Protection Act, 1986 [Now Section 2(11) of the Consumer Protection Act, 2019], which is reproduced as under:”
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The quality, standard, purity and potency of the goods have to be considered in the light of definition of the word, “defect”, as given in Section 2 (1) (f) of Consumer Protection Act, 1986 [now Section 2 (10) of the Consumer Protection Act, 2019], which is reproduced as under:
“(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.”
On perusal of above provisions of the Act, it is clear that “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any law for the time being in force. Keeping in view the above credentials, the ‘defect’ is to be ascertained and if such a defect occurs in a brand new product, then the onus is upon the manufacturer to prove that it is free from any defect and the defect in the same was not a manufacturing one. The OPs have failed to prove that the defect in the product was not a manufacturing defect.
11 It is admitted fact that the complainant is approaching the opposite parties several times from the very start and service engineer of the opposite party visited the house of complainant for resolving the problem which shows that there is some problem in the washing machine from the very beginning. The record shows that the complainant has purchased the washing machine on 8.9.2020 and made the complaint to the opposite parties again and again. It all shows that there is some inherit defect in the washing machine in question. The perusal of record shows that defect in the product in question occurred in a very short period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
In the instant case, the Washing Machine in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
12 The opposite party has taken the objection that the present complaint is bad for non joinder of necessary parties and Service Center of the opposite party is necessary party to the present complaint but we are not agree with the same because the complainant made the complaints to the opposite parties and their service engineer visited the house of the complainant for rectifying the defect in the Washing Machine. The complainant has made the party to seller and company of the product as such there is no necessity to make Service center of the opposite party as party to the present complaint.
13 After the visit of service engineer of the opposite party, the problem of electric shot in the washing machine has not been solved and electric shot is dangerous to the life. Moreover, the complainant has lost his faith in opposite parties.
14 In view of above discussion, the present complaint is allowed and the opposite party is directed to refund the price of the Washing Machine in question. On receiving the above amount, the complainant will hand over the Washing Machine in question to the opposite parties. The complainant is also entitled to Rs. 3,000/- as compensation on account of harassment and mental agony and 2,500/- as litigation expenses from the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
16.05.2024
