BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 668 of 2019.
Date of Institution : 19.11.2019
Date of Decision : 23.02.2022.
Pankaj Sardana aged about 35 years son of Late Shri Bishamber Dass Sardana, R/o House No. 1050, Sector 20, HUDA, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Authorized person/ Manager/ Incharge Flipkart Internet Private Limited Vaishnavi Summit, No. 6/B, 7th Main 80 Feet Road, 3rd Block, Koramangala, Banglore- 560034.
2. D.S Service Center of IFB Care, Dr. Amar Singh Sidhu Wali Gali, Near Parshu Ram Chowk, Arya Smaj Road Sirsa, Distt. Sirsa through its authorized person/ proprietor.
3. IFB Manufacture/ authorized person/ Manager 58 Km mile stone, Village Binola Gurugram (Haryana) Pin Code 122413, India.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI PADAM SINGH THAKUR…………….PRESIDENT.
SMT. SUKHDEEP KAUR………………… MEMBER.
SHRI SUNIL MOHAN TRIKHA……………MEMBER.
Present: Sh. Dheeraj Jain, Advocate for complainant.
Sh. A.S. Kalra, Advocate for opposite party no.1.
Opposite party no.2 already exparte.
Sh. Pankaj Singal, Advocate for opposite party no.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 ( after amendment under Section 35 of Consumer Protection Act, 2019) against the opposite parties (hereinafter referred as OPs) with the averments that complainant had purchased one fully automatic washing machine of IFB company Model- MXA76189/IFB through online from op no.1 for a sum of Rs.27,490/- vide invoice dated 28.12.2018 and same was delivered to the complainant at his residence with every type of assurance of its best quality and with complete warranty card of four years and ten years warranty of motor. On 8.1.2019, op no.2 visited his house alongwith necessary items and fitted washing machine by charging an amount of Rs.2307/- vide bill no.660 dated 8.1.2019 of the items. That the washing machine worked properly for a few months but on 23.6.2019 problem occurred and machine started tearing clothes. The complaint lodged complaint on toll free number and op no.2 visited his house and set the level of washing machine and installed two liquid pouch in it but despite that washing machine could not work properly and started repeating same problem. The complainant has made several complaints to the ops and despite visits of their experts for removal of defects and changing its drum, the washing machine is not working properly rather it has also started making big holes in the expensive clothes and the ops could not solve the problem of complainant. The act and conduct of ops clearly amounts to deficiency in service and unfair trade practice and complainant has suffered harassment and financial loss and there is manufacturing defect in the washing machine. Hence, this complaint.
2. On notice, op no.1 appeared and filed its written version raising certain preliminary objections. It is submitted that op no.1 provides online market place platform/ technology to the sellers and buyers of products to facilitate the transactions, electronic commerce for various goods between respective buyers and sellers. The op no.1 is mere an intermediary providing online platform to the buyers of the products. The grievance, if any of the complainant is against op no.3 i.e. manufacturer for not curing the defects in the product. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.1 prayed for.
3. Initially, Op no.3 opted to be proceeded against exparte. Thereafter, on setting aside the exparte order by Hon’ble State Commission against op no.3, written version was filed on behalf of op no.3 taking certain preliminary objections especially that complainant has filed this complaint alleging manufacturing problems in the appliance without having produced any expert opinion/ documentary proof. On merits, while denying the contents of complaint, it is submitted that a request was received on 23.6.2019 and technician visited to the house of complainant and inspected appliance. It was found that inlet fitter was blocked due to sand. The said filter was cleaned and washing machine was demonstrated in satisfactory working condition. In fact, the complainant had washed the slippers in the washing machine due to which dust blocked filter. The washing machine was working properly and there was no repetition of complaint. It is further submitted that request dated 5.7.2019 was received and was promptly attended. The complainant has over loaded the machine due to which there was alignment problem with the drum. There was no harm to the clothes and there was nothing wrong in the drum which could tear the clothes. However, drum was changed. Then on 21.8.2019 request was received which was swiftly attended. The replaced part was checked and was found working perfectly. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
4. OP no.2 did not appear despite service of notice and was proceeded against exparte vide order dated 10.2.2020.
5. The complainant has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C10 and photographs of torn clothes Ex.C11 to Ex.C17.
6. OP no.3 has tendered affidavit of Sh. Anil Kumar Johri, Executive Taxation Ex.R1. OP no.1 tendered affidavit of Ms. Sheetal Tiwari, authorized signatory Ex.R2 and guidelines for Foreign Direct Investment on E-commerce Ex.R3.
7. Learned counsel for complainant contended that washing machine sold by op no.3 through online was not properly functioning and was tearing clothes and matter was reported to the service center of company i.e. op no.2 and despite repairs, machine could not be repaired despite changing its drum and again washing machine is tearing clothes and contended that there was manufacturing defect in the machine sold by ops. He has further contended that despite repeated complaints, machine could not be repaired due to its manufacturing defect and prayed that machine may kindly be replaced or ops may be directed to refund the price of the washing machine and complainant be compensated with an amount of Rs.50,000/- for unnecessary harassment, humiliation, also with an amount of Rs.25,000/- for tearing of clothes, Rs.5500/- as counsel fee and Rs.1100/- as litigation charges.
8. Learned counsel for op no.1 contended that OP no.1 Flipkart Internet Private Limited has discharged its liability by delivering washing machine manufactured by op no.3 and nothing is to be performed and there is no deficiency in service on the part of op no.1.
9. Learned counsel for op no.3 contended that technician visited to the house of complainant and inspected the washing machine. It was found that inlet filter was blocked due to sand. The said filter was cleaned and the washing machine was demonstrated in satisfactory working condition. In fact, the complainant had washed the slippers in the washing machine due to which dust blocked filter and further contended that complainant has over loaded the machine due to which there was alignment problem with the drum. There was no harm to the clothes and prayed for dismissal of the complaint as washing machine was repaired and was in proper working condition.
10. The perusal of the record reveals that complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the contents of his complaint and has also placed on record bill of washing machine Ex.C1 to the tune of Rs.27,490/-, bill of D.S. Service Centre, Sirsa for the amount of Rs.2307/- regarding installation charges Ex.C2, Ex.C3 to Ex.C10 emails regarding complaints and ticket number issued for the maintenance of the washing machine and Ex.C11 to Ex.C17 photographs of the torn clothes. From the evidence placed on record by complainant, it is not disputed that complainant has purchased washing machine manufactured by op no.3 and washing machine was not working properly and only then complaints were lodged by complainant to the ops which was also repaired as per record placed on record by complainant, but again defect could not be repaired or fixed. Though, op no.3 has tendered affidavit of Sh. Anil Kumar Johri, Executive Taxation of IFB Industries Limited as Ex.R1 in which he has reiterated contents of written statement of op no.3 and has deposed in his affidavit that parties are governed by terms and conditions of the contract/ documents and complainant has filed this frivolous complaint and over loaded washing machine and cleaned sleepers due to that filter had been blocked due to deposit of sand. But the op no.3 has not placed on record any expert report of its engineer to establish on record that there was no manufacturing defect in the washing machine since washing machine was tearing clothes of complainant and complainant has duly reported complaints which were tried to be resolved and washing machine was repaired and its drum was also replaced which shows that drum was replaced by company free of costs and meaning thereby that washing machine was defective and manufacturing defect could not be removed by op no.3 and there was warranty of 10 years.
11. From the perusal of Warranty card (Annexure R-3/1), it is evident that op no.3 had undertaken to repair, replace the washing machine free of costs within 48 months from the date of purchase. The washing machine was purchased on 28.12.2018 and date of its installation though mentioned in Job Card/ Instllation Sheet as 28.12.2018 but from the bill Ex.C2 of D.S. Service Centre authorized for IFB appliances, it is evident that machine was installed on 8.1.2019 and warranty period was to be expired on 27.12.2022. From the perusal of complaints made through emails Ex.C3 to Ex.C10, it is evident that complainant was continuously complaining about defects in the washing machine on different dates i.e. on 9.4.2019, 7.6.2019, 5.7.2019 and 21.8.2019. The complainant in his affidavit Ex.CW1/A has also again reiterated his version that after his complaint on 5.7.2019, mechanic/ engineer of the op no.2 visited his house and after seeing the torn clothes, he checked the machine and its drum was changed and set the functioning of the same and while changing the drum of the machine, the functioning of the top-load of the machine was damaged by technician after changing its drum. The machine was not only tearing clothes, but also started making big holes in the clothes and expensive clothes of the value of about Rs.25,000/- were torn by washing machine, the photographs of which are produced on record as Ex.C11 to Ex.C17. He has further deposed that on his complaint on 21.8.2019, mechanic/ engineer namely Pardeep of op no.2 visited at the house of complainant and disclosed that setting of the washing machine is not correct, so the senior engineer will visit his house. On 30.8.2019, one Mr. Ravi attended the call of the complainant and when he asked him about the status of the washing machine, then he told him that he did not know anything and also assured that they would take strict action for this and senior technician will visit within 48 hours, but no action was taken and op no.2 and op no.3 have not ever resolved the problem of complainant.
12. It is proved on record that washing machine became defective within warranty period and its manufacturing company undertook to abide by all terms and conditions of the warranty given by company. The op no.3 has relied upon judgment of the Hon’ble Supreme Court in case titled as Indian Oil Corporation Vs. Consumer Protection Council, Kerala & Anr. (1994) 1, SCC 397, in which Hon’ble Apex Cout observed that “reliance has to be placed on the circumstances, documents and conduct of Party to prove that the relationship of the Party is of ‘principal and agent’ or of one of ‘principal to principal basis”. Op no.3 has further relied upon judgment of Hon’ble Supreme Court in case titled as Bharti Knitting Company vs. DHL Worldwide Express Courier (1996) 4 SCC 704, in which it was held that “when the complainant signs the contract documents, he is bound by its terms and conditions and the onus would be on him to prove the terms and the circumstances, in which he has accepted the contract. But the above said authorities relied upon on behalf of op no.3 are not applicable to the facts and circumstances of the present case because in the present case, the manufacturing company op no.3 undertook through his warranty card issued to the complainant as under:-
“IFB Industries Ltd (the Company) warrants to the original domestic purchaser of this washing machine (Appliance) that it is free from defects in workmanship and materials. During 48 months from the date of purchase of the new washing machine all the parts of the washing machine which prove to be defective in workmanship and/or materials shall be replaced or repaired free of charge on intimation to the Company/ Company’s authorized service centre nearest to the place where the appliance is installed. This warranty is subject to limitations of warranty.
13. As already mentioned, the washing machine was purchased on 28.12.2018 and it was not found in proper functioning order within three months and first complaint was reported on 9.4.2019, second complaint was made on 7.6.2019 and thereafter also complaints were made on 5.7.2019 and 21.8.2019 and it is also admitted case of op no.3 that its engineer visited the house of complainant and drum of washing machine was changed and again the engineer found that there is defect in the setting of the washing machine. Since washing machine was not working properly after three months of its purchase and defects could not be removed even after repairs, so it is proved on record that there was manufacturing defect in the washing machine and service provider/ care centre of IFB appliances has tried its best to fix the defect but it could not be repaired and again washing machine was not functioning properly. There is no report of expert from the side of op no.3 that there was no manufacturing defect in the washing machine and therefore, complaint is liable to be allowed qua manufacturing company op no.3.
14. In so far as liabilities of other ops i.e. op no.1 and 2 is concerned, op no.1 Flipkart Internet Pvt. Limited simply delivered the washing machine manufactured by op no.3 and op no.2 being the service provider in the name of D.S. Service Center of IFB Care at Sirsa has tired its best to fix the defect but it could not be removed by their efforts, so no liability of any kind of ops no.1 and 2 is made out.
15. Keeping in view of above said reasoning and findings, the present complaint is allowed qua op no.3 and op no.3 is directed to replace the washing machine with a new one of same make and model or to refund its price i.e. Rs.27,490/- to the complainant. The complainant is also entitled to composite compensation to the sum of Rs.25,000/- for harassment and for his torn clothes from op no.3. Op no.3 is directed to comply this order within a period of 45 days from the date of receipt of copy of this order and in case op no.3 fails to comply the order within above stipulated period, action under Section 71 & 72 of Consumer Protection Act, 2019 will be taken against op no.3. A copy of this order be supplied to the parties free of costs. File after completion be consigned to the record.
Announced : Member Member President,
Dated: 23.02.2022. District Consumer Disputes
Redressal Commission, Sirsa.
