Punjab

Ludhiana

CC/16/320

Col.S.B.Singh - Complainant(s)

Versus

IFB Industries Ltd - Opp.Party(s)

Maninder Singh Adv.

20 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 320 of 29.04.2016

   Date of Decision            :   20.11.2017

 

Col.S.B.Singh, aged 73 years, resident of House No.2432, HIG Flats, Urban Estate, Phase-II, Dugri, Ludhiana.

….. Complainant

Versus

                                              

1.IFB Industries Limited (Home Appliances Division), Baldev Warehousing Complex, Wasika No.505, Village Threeke, Outside Octroi, Ferozepur Road, Ludhiana through its Managing Director/Director/Authorized signatory.

2.Managing Director/Director/Authorized signatory of IFB Industries Limited (Home Appliances Division), Baldev Warehousing Complex, Wasika No.505, Village Threeke, Outside Octroi, Ferozepur Road, Ludhiana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                      :         Sh.Maninder Singh, Advocate

For OPs                         :         Sh.Rahul Sood, Advocate Junior to Sh.Swaraj Pal

Sooden, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased a Dishwasher of Neptune New of make I.F.B. from Ops for an amount of Rs.28,300/- on 3.6.2011 vide cash memo No.11824 because of domestic necessity on account of suffering from different ailments by the complainant and his wife. Even a trolley on 7.6.2011 was purchased. Complainant had been using the said dishwasher cleaner for his domestic purposes, but with some procedural difficulties, on account of low profile performance of the machine. Complainant apprehended some serious faults in the machinery with passage of time and that is why, he was desirous to get the above said machinery maintained as per norms fixed by Ops. For availing the facility of regular maintenance from Ops, complainant purchased the annual maintenance/extended warranty/contract on payment of Rs.4445/- on 30.8.2015 vide ICR N0.1915002595. Receipt in this respect was duly issued by Ops for the annual maintenance period for 30.8.2015 to 29.8.2016. Complainant spent hefty amount for annual maintenance in the hope that he will not face any problem with the machine. However, complainant had to suffer multiple problems, which had been not rectified till date. Complainant lodged complaint in the month of September/October 2015 with Ops, but concerned persons failed to satisfy the complainant despite visit to the house of the complainant on 5/6 occasions. Finally on 16.11.2015, it was declared that the defect in the machinery is beyond rectification. Thereafter, complainant took up the matter with call centre in November 2015 and again on 28.11.2015; 13.12.2015 as well as on 28.12.2015, but no communication or reply was received because lame excuses regarding repair continued to be made. Complainant again contacted the call centre of Ops on 11.01.2016; 13.1.2016 and 14.1.2016, but no action was taken and that is why, this complaint has to be filed due to callous behaviour of Ops for not making necessary arrangements for repair of the dishwasher. By pleading deficiency in service and adoption of unfair trade practice by Ops, prayer made for directing Ops to replace the dishwasher with new one and to pay compensation for mental harassment and agony of Rs.2 lac, but litigation expenses of Rs.10,000/-.

2.                In joint written statement filed by OPs, it is pleaded interalia as if complaint is not maintainable in the present form; complainant has not approached this Forum with clean hands because of concealment of material facts; there is no deficiency in service on the part of OPs and that refund of price with interest not permissible because the prayer in that respect alleged to be beyond warranty terms. Besides, it is claimed that complaint merits dismissal in view of section 26 of the Consumer Protection Act(hereinafter in short referred to as 'Act') because of its being false, vexatious, baseless and frivolous. It is claimed that complaint has been filed with ulterior motive for causing harassment of Ops and for extorting money from them. The manufacturer of the said product extended the limited warranty as per terms of warranty. This Forum cannot grant the relief beyond the terms and conditions accepted by the parties and as such, present complaint alleged to be not maintainable, more so when the complainant has not suffered any loss entitling him to have compensation for mental agony etc. Appliance in question is utilized           by the complainant regularly since from the date of purchase. Warranty was for one year and thereafter, complainant availed AMC on terms and conditions printed on receipt-cum-invoice dated 30.8.2015, which has been produced by the complainant himself with the complaint. Complainant is bound by the terms and conditions of the product agreement of AMC arrived at between the parties. Complainant has not produced any expert opinion or documentary proof for proving that appliance in question suffered from any alleged problem or for establishing the manufacturing defect therein. As per section 13(1)(c) of the Act, when defect in the goods alleged, then the same has to be determined after due analysis of the goods by getting the opinion from the appropriate laboratory etc. No such expert report has been produced and nor prayer made for obtaining such report and as such, it is claimed that allegations levelled in the complaint cannot be held to be established. Moreover, the complaint is alleged to be time barred because the dishwasher purchased on 3.6.2011 and this complaint filed on or around 27.4.2016 i.e. after period of 5 years of purchase. In view of Section 24(A) of the Act, complaint alleged to be barred by limitation. Complainant has not impleaded M/s Shehzadas as one of the necessary party to the complaint, but he has wrongly impleaded OP2 i.e. the Managing Director of product in question as a party, despite the fact that Op2 has no office within the territorial jurisdiction of this Forum. Admittedly, appliance in question was sold to the complainant, but not to his wife. Complainant purchased the dishwasher in question as a luxury item voluntarily from M/s Shahzadas and the accessories from M/s Duke Allied Sales and Services on 7.6.2011. Purchased salt is a consumable item and trolley is not a part of the standard fitment. Installation of the appliance was demonstrated to the complainant and there was no low performance of the same. Complainant has levelled false allegations after period of around 5 years. There was no low profile performance of the appliance and allegations levelled in this respect alleged to be false. Complainant preferred to avail annual maintenance contract on payment of Rs.4445/- on 30.8.2015 for period from 30.8.2015 to 29.8.2016.  Ops did not agree to                                                      extend the warranty contract and contrary plea alleged to be false. Word annual maintenance has been categorically ticked in the invoice dated 30.8.2015. It is claimed that neither warranty has been extended and nor Ops are accused, albeit so projected in the complaint. AMC availed by the parties for maintenance of the product and not with expectations of not facing any problem. Complainant has not lodged any complaint with Ops and nor the technician of OPs attended the complainant on 5/6 occasions as alleged. Op1 has no hesitation in rendering services to the complainant. Legal notice dated 5.4.2016 was issued by the complainant and reply of same was sent on 9.4.2016. Through that reply, Op1 proposed to attend the appliance on 14.4.2016, but despite that complainant refused to permit the technician of OPs to inspect the appliance for doing the needful. So, complainant himself was not interested in availing the services of OPs because the appliance was not suffering from any problem. Each and every other averment of the complaint denied by claiming that neither there is any deficiency in service and nor Ops adopted any unfair trade practice. It is also claimed that this Forum has no territorial jurisdiction because Managing Director is not having any office within the territorial jurisdiction of this Forum.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.PA along with documents Ex.C1 to Ex.C5 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for Ops tendered in evidence affidavit Ex.RA of Mr.Anil Kumar Johri, Executive Taxation of IFB Industries Limited along with documents annexure-R1/0 to annexure-R1/3 and thereafter, closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                Purchase of dishwasher in question is not denied by Ops and that fact established by invoice Ex.C1 dated 3.6.2011. This dishwasher was purchased for an amount of Rs.28,300/- through invoice Ex.C1 dated 3.6.2011. The trolley and 2 kg salt was purchased for Rs.1190/- on 7.6.2011 through retail invoice Ex.C2. It is contended by counsel for OPs that warranty of dishwasher was for one year, but that has elapsed and as such, the present is not a case of extended warranty. That submission of counsel for OPs certainly has force because the contract of insurance/warranty stands on independent footing than that of the contract of annual maintenance, services. After going through receipt-cum-invoice Ex.C3               dated 30.8.2015, it is made out that annual maintenance contract regarding dishwasher in question was arrived at between the parties with validity for period from 30.8.2015 to 29.8.2016. So, certainly Ops were to render the services in respect of dishwasher in question as per terms and conditions of the annual maintenance contract printed on the back of Ex.C3. Payment of Rs.4445/- through Ex.C3 even made by complainant to Ops for the annual maintenance contract and not for extended warranty contract and that is why tick on annual maintenance clause is put in Ex.C3. Defect in the dishwasher complained in September/October 2015 i.e. after about more than 4 years of purchase of dishwasher on 03.06.2011 and as such, virtually dishwasher continued to work properly till lodging of complaint in September/October 2015 and subsequently on November, 2015 and January 2016, the dates of which mentioned in the complaint as well as in the affidavit of complainant. Complaints certainly were lodged within the validity period of AMC contract and as such, Ops bound to render the services as per terms and conditions of the annual maintenance contract Ex.C3.

7.                It is vehemently contended by counsel for complainant that no action has been taken by Ops for rectifying the defects, despite numerous calls and as such complainant has suffered a lot, owing to non-use of the dishwasher by his wife. It is contended that physical and mental tension was caused to the complainant and his wife because prayer for rectification not responded. It is contended that if the defects in the dishwasher are not rectifiable, then the dishwasher should be ordered to be replaced. As response to the calls not given by OPs and as such it is contended that complainant purchased the brand new dishwasher resulting in financial loss to the complainant. However, it is vehemently contended by counsel for Ops that due service offered to be rendered by Ops to the complainant, but complainant himself refused to avail those services and as such, fault lay with the complainant.

8.                Perusal of annexure R1/0 reveals that dishwasher was out of the warranty period, when the services on 30.8.2015 for cleaning water inlet filter, blocked due to sand were provided. That fact specifically endorsed on annexure R1/0 and as such, it is obvious that on 30.8.2015, services of cleaning of water inlet filter, blocked due to sand, were provided by Ops to the complainant through job card annexure R1/O.

9.                Annexure R1/1 along with copy of postal receipt R1/2 shows that the reply was sent by the Ops to the complainant in response to the issued legal notice Ex.C4 through postal receipt Ex.C5. 

10.              If in Ex.C4, complainant claimed about low profile performance of dishwasher in question and his sufferance from callous behaviour by the officials of OPs in not rectifying the defect, despite numerous calls and reminders, then to the contrary, in Ex.R1/1, it is specifically mentioned that allegations regarding sufferance or humiliation are false and frivolous because no complaint of complainant is pending with Ops and grievance projected through legal notice is alleged to be false. Certainly record of telephonic calls cannot be maintained, but disclosure of dates specifically in paras no.9 and 10 of the complaint as well as in corresponding paras of affidavit enough to establish that the complainant had been contacting Ops during period from November 2015 for rectification of defect. Even if Ops may have not responded to the above referred calls, despite that they through reply Ex.R1/1 offered to send the technician for visiting the house of complainant on 14.4.2016 for inspection of appliance and doing the needful and in response to the said offer, job card annexure-R1/3 was prepared for visit of the representative of OPs on 14.4.2016 to the house of the complainant. In annexure R1/3 itself, it is mentioned specifically that this visit by the technician was made as per fixed date through reply of the legal notice, but for checking the dishwasher. In annexure-R1/3 itself it is mentioned that customer refused to get checked the dishwasher. In view of this, there is no escape from the conclusion that though earlier OPs may have refused to render the services, but they in fact rendered such services on 14.4.2016, but complainant refused to avail those services.

11.              Statement of Mr.Hakam Chand Sharma, authorized representative of IFB Industry was recorded in this Forum on 31.1.2017, where-through he reported that OP company has no information available with it regarding the document sought through Mark CW1/1. Even if Sh.Hakam Chand Sharma may have not brought the identity card of the firm, but he brought the visiting card and contents of Mark CW1/1 establishes that Sh.Hakam Chand Sharma is authorized to appear on behalf of M/s IFB Industries Limited and as such, statement of Sh.Hakam Chand Sharma cannot be ignored, being of authorized representative of IFB Industries Limited. This Hakam Chand Sharma in his cross-examination claimed that after receipt of the copy of summons of the Court, he made enquiry at his own level for finding that no record of complaints was available in the office. Even Sh.Hakam Chand Sharma claims to have made enquiry regarding material mentioned in the summons issued by this Forum. This enquiry was made regarding sought particulars from internal electronic system of OP company by the complainant and that is why he is able to claim that Ex.C2 belongs to Duke Light Sales and Services, but not to IFB. This Hakam Chand Sharma admitted as if Ex.C3 is annual maintenance agreement, but Ex.C1 is not issued by their company. These assertions of Sh.Hakam Chand Sharma cannot be disbelieved, particularly when he admitted that Ex.C3 issued by IFB, but of Ex.C1 and Ex.C2, not issued by IFB, but by                            the others like M/s Shahzadas and Duke Light Sales and Services. So, virtually the record of complaints not available with Ops and if that be the position, then some mistake occurred either in lodging of the complaints with appropriate authority resulting in non attending of those complaints lodged by the complainant. Being so, in view of readiness expressed by Ops to provide services on 14.4.2016, it has to be held that actually Ops never refused to provide due services as per AMC and as such, mental harassment of complainant on account of fault of Ops cannot be inferred, particularly when the complainant himself failed to avail the services of technician/mechanic of OPs on 14.4.2016,when he visited the house of complainant.

12.              As per clause 1 of the terms and conditions of AMC Ex.C3, the defects, if any in the appliance shall be rectified by IFB company or by its authorized service franchisees/service agents. The spare parts request regarding appliance, if any, could be either new spare parts or reconditioned spare parts, to be decided at the sole discretion of IFB. So, AMC provides for induction of new spare parts or reconditioned spare parts, but as per discretion of the IFB. In clause 9 of Ex.C3 itself it has been specifically mentioned that the contract sets out all the terms and conditions, on which IFB Industries Limited will service the appliances under the contract and cancels and supersedes all prior agreements, undertakings or arrangements, verbal or written between the parties on the subject matter. So, this clause 9 of Ex.C2 specifically provides that earlier agreement regarding warranty has come to an end and now contract of annual maintenance has been arrived at. So, certainly it is not a case of extended warranty, but it is a case of annual maintenance contract service.

13.              Clause 12 of Ex.C3 provides that company or service franchisee or the service agent will provide two mandatory free services per annum during the period of contract, but in case of air conditioner, the company or service agent shall provide three number of free services(two dry and one wet). Clause 13 of Ex.C3 provides that failure due to erratic power supply, fluctuation beyond rated voltage 230 +/- 10% volt 50 _+/- 3% cycles per second frequency shall not be covered under this contract. In view of these clauses contained in Ex.C3, it is obvious that cause of defect in the dishwasher can be found on checking of the dishwasher by an expert alone. That checking has been refused by the complainant on 14.4.2016 and as such fault lay with the complainant and not with Ops. However, Ops bound to provide services as per AMC(Ex.C3). Until and unless, a mechanic/expert of Ops will not check the dishwasher, till then it cannot be found as to what defects actually in the dishwasher are there or as to what are the causes thereof. So, Ops in view of the terms of AMC required to get the dishwasher in question checked through its mechanic/expert within 30 days from the date of receipt of copy of this order, provided complainant allows such checking. In case, any defects found in dishwasher, then they will be liable to be removed by Ops as per the terms and conditions of AMC, copy of which is placed on record as Ex.C3, within 15 days from the date of receipt of report of checking by expert of OPs. Complainant not entitled to any compensation and litigation expenses because he himself refused to avail services on 14.4.2016 of technician/mechanic sent by OPs. Needless to say that expenses of appointed expert will be borne by Ops because it is the duty of Ops to get the dishwasher checked, free of costs as per terms of Ex.C3 itself.

14.              Therefore, as a sequel of the above discussion, complaint partly allowed in terms that OPs will check dishwasher through its mechanic within 30 days from the date of copy of order and complainant will allow such checking. In case any defects found in the dishwasher, then they be removed as per terms and conditions of A.M.C., copy of which is placed on record as Ex. C3, within 15 days from the date of receipt of report of checking by expert of OPs. No order as to costs or compensation. Copies of order be supplied to parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                   (G.K.Dhir)

 Member                                                             President

Announced in Open Forum

Dated:20.11.2017

Gurpreet Sharma.