Haryana

Panchkula

CC/97/2020

GAURAV BHATIA. - Complainant(s)

Versus

HITACHI INDIA PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

22 Aug 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

Gaurav Bhatia, S/o Sh. Vijay Bhatia, resident of # H.No.395, Sector-10, Panchkula.

    ..….Complainant

Versus                                                                  

1.     Johnson Controls Hitachi Air conditioning India Ltd. through its    Chairman/Managing Director, Abhijeet-I, 9^th Floor, 903-904,   Mithakhali Six Road, Navrangpura, Ahmedabad-380009.

2.     New Bansal Electronics(2017-19) SCO 269 Sector-16, Panchkula.

                                                                         ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

For the Parties:   Sh.Ashok Malhotra, Advocate for the complainant.

                         Sh. Puneet Tuli, Advocate for OP No.1.

                         Defence of OP No.2 struck off vide order dated 13.04.2021.            

ORDER

(Satpal, President)

1.The brief facts, as alleged in the present complaint, are that  the complainant had purchased  the one HITACHI 601 LTRS Refrigerator for an amount of Rs.73,000/- including GST etc. vide bill no.NBe 16/9411 dated 30.04.2019. It is alleged that the said refrigerator was  found defective and deficient in its performance after its installation on 30.04.2019 and it was noticed that the flow of cooling wasn’t upto the requirement and so, the complainant informed the OP No.1 vide complaint no. 19083102219. Thereafter, the OP No.1 sent one of its engineer, namely, Sukhbir Singh immediately, who failed to identify the defect in the refrigerator. The complainant lodged severed complaints seeking the rectification of the defects in the refrigerator, in response to which, the technical persons of the OPs inspected the refrigerator w.e.f. 07.09.2019 to 13.11.2019 but the defect could not be rectified. The details of complaints are given as under:- 

Sr.No.       Date          Brief Facts of complaint

1.           31 Aug.      Complaint   No.19083102219
2.           5 Sep.                 7 Sep.       Complaint no.19090701119
3.           15 Sep.      Complaint no.19091501388
4.           2 Oct.        Complaint no.191900201004
5.           15 Oct.      Complaint no.19101504350
6.           18 Oct.      Complaint no.19101804535  

                The complainant had also sent emails to OPs on 25.11.2019, 06.12.2019 and 16.12.2019 seeking the removal of the defect in the refrigerator or to replace the same or to refund the product price of the refrigerator. It is alleged that the Ops have refused  to remove the defect in the refrigerator and also to replace the same and thus, due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OP No.1 has appeared through its counsel and filed written statement contesting the complaint mentioning that there was no deficiency on the part of OPs No.1 & 2 as whenever the complainant approached the OPs No.1 & 2 for any issue with the said product, the same was duly addressed by the technicians of the OPs No.1 & 2. It is submitted that no expert report has been placed on record by the complainant to show that there was any manufacturing defect in the product in question. It is submitted that the complainant had approached the OPs No.1 & 2 on 30.04.2019 stating cooling issue in the refrigerator and upon its inspection by the technician by Ops, the same was found working properly with no cooling issue as alleged. It is stated that the complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act, 2019 as the complainant has failed to prove any manufacturing defect in the product in question nor any deficiency in service on behalf of the OPs No.1 & 2. It is stated that the reliefs sought by the complainant, in the present complaint, are beyond the agreed terms and conditions of warranty and also outside the ambit of section 24(2) of the Act. It is submitted that the reliefs sought by the complainant are clearly beyond the expressed terms and conditions of warranty. It is submitted that the replacement of product and/or refund of price cannot be granted until and unless complainant has proved, by cogent, credible and adequate evidence supported by the opinion/report of a technical expert that the product suffered from inherent manufacturing defect. It is stated that as per condition of warranty, replacement of the product or refund is expressly excluded and warranty covers only repair or replacement of any part thereof, which needs replacement or repair for any reason of defective workmanship or defective components; which makes it clear that when there is defect in a part, it shall only be repaired and/or replaced by the OPs No.1 & 2. Further, in case of damage, the product can only be repaired on chargeable basis paid by the complainant. The compensation can be awarded to a consumer only in respect of loss or injury suffered by the consumer due to the negligence of the OPs. The complainant has failed to prove any negligence on the part of the OPs No.1 & 2 and that as a consequence thereof, loss or injury was suffered by him. It is admitted that the complainant had purchased a Hitachi Refrigerator from OP No.2 on 30.04.2019 manufactured by OP No.1 in good and sealed condition for a consideration of Rs.73,000/-(inclusive of all taxes). It is stated that the said products carries a warranty for a period of one year and for a period of five years for the compressor. Rest of the allegations alleged by the complainant, have been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 and as such, the complaint is liable to be dismissed.

                Upon notice, the Op No.2 has  appeared through Sh.Ravi Kumar Bansal, Proprietor/Authorized Representative to contest the complaint; but he did not file the written statement despite availing several opportunities including the last opportunity; as such, its  defence was struck off by the Commission, vide its order dated 13.04.2021. 

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP no.1 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 to R-1/3 and closed the evidence.

4. We have heard the learned counsels for the complainant and OPs and gone through the entire record available on file including written arguments filed by the complainant as well as OP no.1, minutely and carefully.

5. The only question that falls for consideration before us, is, as to whether there was any manufacturing defect in the refrigerator as alleged.

6.During the arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant has alleged the manufacturing defect in the refrigerator in question and thus, prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

7.On the other hand, the learned counsel appearing on behalf of OP No.2 has contested the complaint, apart from merits, by raising several preliminary objections. The learned counsel, while reiterating the averments as made in the affidavit Annexure R-2/1, has contended that the complaint is liable to be dismissed for want of any expert opinion/expert report in favour of the complainant. It is contended that the expert opinion is mandatory vide Section 38(2) (c) of Consumer Protection Act 2019 to prove the allegations qua manufacturing defect in the refrigerator in question. In this regard, reliance has been placed on the following case laws:-

i.      Hero Moto Corp Ltd. Vs. Gaurav Panday & Anr. in first appeal    no.235 of 2013 decided on 24.04.2015(SCDRC,  Uttarkhand).

ii.      Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & ors. (2010)   CPJ 130(NC).

                Continuing the arguments, the learned counsel contended that no benefits can be provided against or contrary to the warranty conditions. It is contended that as per terms and conditions of the warranty, only the defective parts of the product in question are liable to be replaced & not the entire unit. In this regard, reliance has been placed on the following case laws:-

1. Stereocraft Vs. Monotype India Ltd. New Delhi (2000, NCJ(SC) (59)).
2. Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, (2006) 4SCC 644(SC).
3. Bharathi knitting Vs. D.H.L. Worldwide, (1996) 4 SCC 704.

Further, continuing the arguments, the learned counsel contended that no defect was found in the refrigerator in question by the technical persons upon their inspection of said refrigerator and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

8.On the other hand, the Op No.2 has failed to file its written statement/reply, despite having taken sufficient time and resultantly, its defence was struck off vide our order dated 13.04.2021 and thus, there is no rebuttal to the contentions of the complainant

9.Admittedly, the complainant had lodged several complaints qua cooling issue in the refrigerator in question, the details whereof are given as under:-

Sr.No.               Date          Brief Facts of complaint

1.                 31 Aug.      Complaint   No.19083102219
2.                 5 Sep.                       7 Sep.       Complaint no.19090701119
3.                 15 Sep.      Complaint no.19091501388
4.                 2 Oct.        Complaint no.191900201004
5.                 15 Oct.      Complaint no.19101504350
6.                 18 Oct.      Complaint no.19101804535  

              In addition to above, the complainant has also sent the emails dated 25.11.2019, 06.12.2019 & 16.12.2019 seeking the rectification of the defects in the refrigerator. Further, the complainant has also sent a letter(Annexure C-6) to Ops mentioning the details of all the complaints lodged by him and had prayed for the replacement of the refrigerator.

11.The OP no.1 has refuted the claim of the complainant qua the existence of any manufacturing defects in the refrigerator on the basis of jobsheet dated 04.11.2019 (Annexure R-1/4). The above job-sheet is of no help to the case of OP No.1 as no affidavit of the alleged technical person, who had issued the said job-sheet has been placed on record. It is the specific, consistent and categorical assertions of the complainant that the refrigerator in question is having manufacturing defect in it and in this regard, the complainant had lodged several complaints as mentioned above. In view of the several complaints lodged by the complainant qua cooling issue in the refrigerator, it was imperative upon OPs to get the same inspected through a team of highly qualified experts, having wide experience, so as to ascertain the real problem in the refrigerator as also to disprove the assertions of the complainant.

12. Pertinently, the OPs No.1 & 2, instead of getting the refrigerator in question checked and inspected from a team of highly qualified experts, having wide experience, had preferred to send some technical persons. Even the affidavit of said technical person substantiating and corroborating, the contentions and assertions of the OPs have not been placed on record. Further, no such documentary evidence has been placed on record on behalf of the OPs showing the qualifications and experience of the technical person, was allegedly deputed by OP No.1 to inspect the refrigerator in question. In such circumstances, we find the force and substance in the contentions of the complainant that the refrigerator in question is having defect in it, which the OPs have failed to rectify the same and accordingly, the OPs No.1 & 2, jointly and severally, are held deficient while rendering services to the complainant.

13.Coming to the relief, it is found that the complainant has prayed for refund of the purchase price of refrigerator i.e. Rs.73,000/- with interest. Further, a sum of Rs.50,000/- and Rs.25,000/- have also been claimed on account of mental agony, physical harassment and litigation charges.

14.    As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.73,000/- to the complainant, along with interest @ 9% per annum(s.i.) w.e.f. the date of filing of the complaint till its realization subject to return of the refrigerator to OPs, who shall get the same collected from the complainant.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

15.  The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 22.08.2023

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

Note: Each and every page of this order has been duly signed by me.

                                             Satpal

                                            President