Chandigarh

DF-I

CC/485/2021

Jiten Sharma - Complainant(s)

Versus

Hitachi Home & Life Solutions India Ltd. - Opp.Party(s)

H.P.S. Ishar

06 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/485/2021
Date of Institution	:	26/07/2021
Date of Decision	:	06/06/2022

 

Jiten Sharma S/o Rattan Kumar, aged about 44 years resident of #910, Sector-7-B, Chandigarh.

… Complainant

V E R S U S

1. Hitachi Home & Life Solutions (India) Ltd. Head Office & Works Hitachi Complex, Karan Nagar Kadi, Distt. Mehsana – 382727, Gujarat, India.

Corporate Office A-15, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi, India.

2. Kabir Electronics, SCF-91, Ground Floor, Phase-7, Near Andhra Bank, Mohali through proprietor.

… Opposite Parties

CORAM :	SURJEET KAUR	PRESIDING MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                

ARGUED BY	:	Complainant in person.
	:	Sh.Puneet Tuli, Counsel for OPs.

 

Per Suresh Kumar Sardana, Member

1.      Adumbrated in brief, the facts necessary for the disposal of the present Consumer Complaint are, the complainant has approached this Commission seeking refund of the amount of Air Conditioner Branch Hitachi, manufactured by OP No.1 and purchased from its authorized dealer OP No.2. It is averred that since beginning the machine is not running properly due to manufacturing defect. Most of the time it remained out of order and despite replacing the defective part twice, the same is not working properly. There is not only deficiency of service on the part of OPs but the complainant has been made to suffer in hot and humid weather due to malfunctioning of the defective air conditioner. With the cup of woes brimming, the Complainant has filed the instant Consumer Complaint seeking refund of an amount of Rs. 35,000/- i.e. cost of air conditioner  besides compensation of Rs.20,000/- and cost of litigation to the tune of Rs.15,000/-. 

2.       The opposite parties contested the claim of the complainant tooth and nail. It is not disputed that the complainant purchased the machine in question, manufactured by OP No.1 on 29.12.2019 from OP No.2. However, the claim has been opposed on the ground that after using the machine satisfactorily for more than one and a half year, the complainant approached this Commission with a prayer seeking refund of the bill amount, which is not legally permissible. They took the stand that warranty policy does not contain any provision warranting refund of the amount especially when no cogent and convincing proof or report of expert has been produced to prove manufacturing defect. At most the liability of the OPs is to repair the defective part that too on chargeable basis on expiry of warranty period. It is admitted that the machine suffered defect on 04.07.2021 but the defect was successfully removed by replacing the defective part on 05.08.2021. The Engineer charged an amount of Rs.500/- for the service given. Pleading that neither there was any manufacturing defect nor there is any deficiency of service on the part of OPs, prayer for dismissal of complaint has been made. Even otherwise, it is settled that the product which can be repaired cannot be ordered to be replaced.

3.       In the additional affidavit/ rejoinder filed by the complainant, the assertions made by the OPs have been denied. It is reiterated that the OPs not only committed deficiency in service by supplying a machine with manufacturing defect which remained out of order since beginning but also indulged in unfair trade practice as they failed to maintain the quality and standard of the product. Service complaints with resolution and emails sent to the higher officers of OP No.1 (Annexures A-1 to A-13) qua defective AC were placed on record.

4.       Both the parties were asked to file written arguments in support of their respective claims, which were filed by them. Oral arguments made by the complainant in person and learned counsel for OPs have been heard.

5.       The complainant has argued that the air conditioner was purchased in winter season and when the same was put to use in summers, there were issues relating to low cooling, noise and number of times repairs were attempted. Ultimately there was break down in the machine, as a result the defective part i.e. Controller of the outdoor unit was replaced by the OPs in August 2020. For some time the machine worked satisfactorily but during the next season when the machine was put to use, there was break down of Controller unit again and after one month of lodging the complaint the defective part was replaced and Engineer charged Rs.500/- for that. According to the complainant, there was ample proof in the shape of documents, Annexure A-1 to A-13 to prove that the machine was having manufacturing defect from the beginning and despite replacing the defective part twice the defect was not rectified. Most of the time machine remained out of order and the purpose for which the product was purchased has totally been frustrated. The defence taken by the OP while referring to warranty clause is not available to them, especially when the OP replaced the defective part even after expiry of warranty, which amounts to admission that there was manufacturing defect. Once the OPs did not dispute the replacement of defective part and ample evidence was there to prove manufacturing defect, the onus shifted on the OPs to controvert the same but they failed to do so and rather concealed the service reports pertaining to the period June-July, 2020. The complainant has lost faith in the products of OP No.1 and therefore, he is entitled to refund of the bill amount of the defective product besides compensation and litigation costs. During the course of oral arguments, reliance has been placed by complainant in support of his submissions on the cases of Voltas Limited Vs. Amritpal Kaur & Anr. 2010(2) CPJ 26, M/s HCL Limited Vs. Reji K. Varghese 2001(2) CPJ 270, M. Sundar Ram Reddy Vs. M/s Pavan Appliances & Ors., CC No 131 of 2017, decided by District Consumer Disputes Redressal Forum, Karimnagar, Telangana State on 30.11.2018, Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Ors. 2014(1) CLT 588 and M/s Daikin Air-conditioning India Vs. Mandeep Kaur, decided by State Consumer Disputes Redressal Commission, Chandigarh on 25.032015 (FA No.58 of 2015). In the written arguments filed by complainant, he has also relied upon the cases of Vikash Vs. Taya Sales & Anr.(CC No. 173 of 2016 decided on 30.03.2017 by District Consumer Disputes Redressal Forum, Palwal), Sukhwinder Singh Vs. Daikin Air Conditioning India Pvt. Ltd & Anr. (CC No. 202/2016 decided by District Consumer Disputes Redressal Forum on 18.10.2017), Mr. V. Arunmozhiselven Vs. M/s Electronika Pvt. Ltd. & Ors. (CC B. 21/2016 decided by District Consumer Disputes Redressal Forum, Chennai on 20.12.2017) and Gurcharan Singh s. Vestar & Ors. (CC No. 180 of 2017 decided by District Consumer Disputes Redressal Forum Karnal on 29.10.2018).

6.         On the other hand, learned counsel for the OPs has strenuously argued that no evidence in the shape of expert witness has been produced to establish that there was manufacturing defect in the product. The complaints made by the complainant were promptly attended all the times and needful was done by replacing the defective part. Hence, it does not lie in the mouth of the complainant to claim refund of the bill amount dehors the provisions contained in the warranty clause wherein replacement of the product or refund is expressly excluded. According to learned Counsel, it is settled law that the product which can be repaired cannot be ordered to be replaced. He has placed reliance on the cases of Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. 3(2010) CPJ 130 (NC), Stereocraft Vs. Monotype India Ltd. New Delhi 2000 NCJ(SC) 59 and Shivprasad Paper Industries Vs. Senior Machinery Company 1(2006) CPJ 92 NC.
7.         We have considered the rival contentions raised on behalf of both the parties.
8.         It is not disputed by OPs that an air condition manufactured by OP No.1 was purchased by the complainant on 29.12.2019 from OP No.2, its authorized dealer. It was winter season and obviously the machine was put to use in summers only.
9.         As per Annexure A-1 on 25.06.2020, a defect was noticed in the machine. Complaint was filed at the online portal of Hitachi and it was assigned Call No. 20062502900. On 26.06.2020, Engineer cleaned the Air Filter. Just after one day i.e. on 27.06.2020 another complaint was lodged and it was attended by the Engineer and service was done as is apparent from Annexure A-2. On 29.07.2020 machine started making noise and another complaint bearing call No.200729025439 (Annexure A-3) was made at the online portal of Hitachi. As per resolution provided on the complaint, the defective part of the machine was aligned/ readjusted on 30.07.2020. After few days on 16.08.2020, there was break down in machine. A complaint bearing call No.20081602253 (Annexure A-4) was made at the online portal. Needful was not done and consequently, the complainant wrote email dated 17.08.2020 (Annexure A-5) which was acknowledged by OP No.1 vide email Annexure A-6. It has come on record that after 9 days of lodging the complaint, OP No.1 replaced the defective part on 25.08.2020. Annexure A-7 has been placed on record by the complainant which, shows that on 04.07.2021,    there was breakdown in the machine again and it stopped working. Accordingly, call bearing No.21070403879 was filed. The Engineer visited the complainant and a sum of Rs.500/- towards visiting charges were admittedly paid by the Complainant. Receipt thereof has been placed on record as Annexure C-2 filed with the complaint. It appears that the said defective part was not replaced by OP No.1. Various correspondence/notices dated 08.07.2021, 12.07.2021, 13.07.2021 and 14.07.2021 (Annexure A-8 to A-11 respectively) were sent by the complainant to customer care, Manager Service, GM Service and National Head Service of OP No.1. Needful was not done and the instant complaint was filed on 26.07.2021. Thereafter, the defective part was replaced after lapse of more than a month of lodging of complaint on 05.08.2021. The very next day i.e. on 06.08.2021, another complaint was filed about non-functioning of the AC.
10.        Nothing has been brought on record by OPs to controvert the contents of above documents placed on record by complainant. OPs in their written statements rather have not mentioned about previously lodged complaints and service reports pertaining thereto. A deliberate attempt has been made by OP No.1 to conceal the aforesaid service reports which were their own documents and they straightway mentioned about the defect that occurred on 04.07.2021. As enumerated above, overwhelming evidence is there on record to establish that from the beginning there was manufacturing defect in the machine. In a short span of six months of its purchase, the machine underwent repairs on various occasions, including replacement of defective part. The next very season, same part again stopped working and it was replaced admittedly by the OP No.1. An amount of Rs.500/- was charged towards Engineer visit. The defective part was replaced on the recommendation of Engineer of OP No.1 itself, without there being any overt act attributed to the complainant. Still OP No.1 failed to rectify the defect and hence there was deficiency in service. The machine had run during two summer seasons for few days only and during that period, it had not functioned properly and remained idle in “out of order” position for most of the summer periods only because of the negligence of OP No.1 which had sold a machine with manufacturing defect. Cogent and ample evidence is there on record which makes it abundantly clear that there was manufacturing defect in the machine. The act of OP No.1 in replacing the defective part even after the expiry of warranty amounts to admission on the part of OP No.1 that there was manufacturing defect in the product. When the facts speak for themselves proving the inherent manufacturing defect in the AC, no expert evidence was required to be produced by the complainant. OP No.1 cannot wriggle out of its liability by saying that as per warranty, it can at most be asked to repair the defective part and not replacement/refund of whole machine. The defect arose during the warranty period and it continued recurring and if the defect still persists, even though the warranty period has expired since the defect originated during warranty period and the same could not be successfully cured, it cannot be maintained that the complainant is not a consumer as the warranty period has expired. It is the duty of the opposite party to fulfill the assurance given at the time of purchasing the product and also the amount collected for the said product from its customer. In this view of the matter, the decisions relied by learned counsel for OPs is not relevant to the facts of the case in hand.
11.        No doubt, the AC manufactured by opposite party No.1, sold through product seller i.e. opposite party No.2, suffered from manufacturing defect and it was having recurring defects and repairs were attempted. This itself indicates that there was some manufacturing or inherent defect in the AC which could not be removed. In that circumstances the agony of the consumer can be imagined when the consumer had purchased something for making its life better and instead of making his and family members life comfortable the consumer is put into much harassment and metal agony. It may be stated here that the liability of product manufacturer is defined in Section 84 of Consumer Protection Act, 2019 and product manufacturer, which in the instant case is opposite party No.1, is very much liable under Clause (a) of the said provision, to refund the billed amount received by it through opposite party No.2, as the product contains a manufacturing defect.
12.        Now coming to the liability of the Dealer i.e. opposite party No.2, it may be stated here that liability of product seller is defined in Section 86 of Consumer Protection Act, 2019, which reads thus:-

“86. Liability of product sellers. - A product seller who is not a product manufacturer shall be liable in a product liability action, if—

 

(a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or

 

(b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or

 

(c) he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or

 

(d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or

 

(e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.”

 

13.        None of the above conditions as envisaged in Section 86 of Consumer Protection Act, 2019 have been violated by opposite party No.2, so as to bring it under the purview of fixing liability. No doubt, opposite party No.2 being the dealer/product seller sold the AC, in question, to the complainant, which has inherent manufacturing defect but the fact is that the liability for any manufacturing defect in the product sold by the dealer cannot be fastened upon the dealer. There is no deficiency on the part of opposite party No.2 in so far as the provisions of Section 86 of Consumer Protection Act, 2019 is concerned and every time, the grievance qua the defective AC was always put by the complainant through mail to the customer care centre or to its Head etc.
14.        It cannot be forgotten that when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another round of litigation which will be highly tortuous. Therefore, the proper course for Opposite party No.1 is to refund the amount of the defective product. It is also true that the complainant and his family members suffered due to non working of the AC in the peak summer season for which the complainant is also entitled for compensation and costs of litigation. 
15.        In the light of above observations, we are of the concerted view that the present Complaint of the Complainant deserves to succeed against Opposite Party No.1 and the same is partly allowed with costs, qua it. Opposite Party No.1 is directed:-

(i)  To refund the amount of Rs.35,000/- to the Complainant alongwith interest @7% p.a. from the date of its purchase i.e.29.12.2019 till realization;

 

(ii) To pay Rs.15,000/- to the complainant towards compensation for deficiency in service, unfair trade practice and for causing harassment caused to him;

 

(iii)    To pay Rs.10,000/- as litigation expenses;      

 

         This order be complied with by Opposite Party No.1 within 30 days from the date of receipt of its certified copy, failing which, the amount mentioned at Sr. No.(i) shall carry interest @9% p.a. from the date of purchase of the AC till realization and the amount mentioned at Sr. No.(ii) shall carry interest @9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above. The AC in question shall be collected by opposite party No.1 from the premises of the complainant within the aforesaid period of 30 days from the date of receipt of certified copy of this order at its own expenses.

16.      However, the complaint stands dismissed against opposite party No.2 with no order as to costs.

17.      The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
06/06/2022	[Suresh Kumar Sardana]	[Surjeet Kaur]
Ls	Member	Presiding Member