DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 518/2016
Date of Institution : 26.04.2016
Date of Decision : 02.05.2017
Munish Kumar son of Sh. Hans Raj resident of Street No. 3, Tapa, District Barnala.
…Complainant
Versus
1. IFB Industries Limited, Flat No. IND-5, Sector-1, East Kolkata Township, Kolkata-70010, Through its Managing Director/Authorized Signatory.
2. S. Kumar & Co., Sadar Bazaar, Tapa Mandi, District Barnala, Through its Managing Director/Authorized Signatory.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. SK Bansal counsel for the complainant.
Sh. SK Kotia counsel for opposite party No. 1
Sh. BS Gupta counsel for opposite party No. 2.
Quorum.-
1. Shri S.K. Goel : President
2. Ms. Vandna Sidhu : Member
3. Shri Tejinder Singh Bhangu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Munish Kumar son of Hans Raj has filed the present complaint under Consumer Protection Act 1986 (In short the Act) against IFB Industries Limited, Kolkata opposite party No. 1 and S. Kumar and Company, Tapa District Barnala opposite party No. 2.
2. The facts emerging from the present complaint are that the complainant purchased one washing machine having its Model Name IFB 675 Kg TL-RCG 6.5 Kg Aqua having its Serial No. 021015150829011529 with its complete accessory from the opposite party No. 2 at Tapa District Barnala, Punjab vide bill No. 1296 dated 20.11.2015 on cash payment of Rs. 18,000/- for household purpose. It was having one year warranty and the opposite party No. 2 assured that it would work efficiently. Thereafter, the complainant started to use the washing machine in his daily routine work in his house.
3. It is alleged that in the month of January 2016 the said washing machine did not work due to some fault and its spinning part became inoperative. Therefore, the complainant many times telephonically and personally informed the opposite party No. 1 and also to opposite party No. 2 about this problem. The complainant also registered number of complaints about this problem to customer car at No. 180030005678 and complaints on several dates are as,-
a) Complaint No. 17219664 dated 20.1.2016
b) Complaint No. 17372297 dated 8.2.2016
c) Complaint No. 17452096 dated 25.2.2016
d) Complaint No. 17571028 dated 22.3.2016
e) Complaint No. 17622053 dated 2.4.2016
4. It is further alleged that the complainant approached the opposite parties No. 1 and 2 with the complaint of not working of the said washing machine but every time opposite parties assured that it will be repaired or replaced very soon. However, till today the opposite parties did nothing and lingered on the matter with one pretext or the other. Hence the complainant sent one legal notice dated 4.4.2016 through his counsel but no reply was given by the opposite parties. Hence it is alleged that it is a case of deficiency in service on the part of the opposite parties. Thus, the present complaint is filed seeking the following reliefs.-
1) The opposite parties may be directed to replace the said washing machine with a new one or to refund the price alongwith interest at the rate of 18% per annum.
2) To pay Rs. 15,000/- as compensation for mental harassment.
3) To pay Rs. 5,000/- as litigation expenses.
5. Upon notice of this complaint the opposite party No. 1 filed a written version taking legal objections interalia on the ground of maintainability, jurisdiction, beyond of warranty terms and complainant is bound by terms and conditions of the contract.
6. On merits, it is averred that the washing machine purchased by the complainant is working properly and the complainant is regularly utilizing the same. The opposite party No. 1 had extended four years limited warranty over the appliance in question and the complainant without going through the said warranty term has filed the present complaint with false allegations that the opposite party No. 1 had extended one year warranty over the said product. It is also averred that there is no separate spinning part in the appliance rather the washing tub itself is rinsing the clothes by spinning process. Moreover, the request received from the complainant was promptly attended by the technician of the opposite party No. 1 and the details of the said requests attended by the opposite party No. 1 are as.-
Request Request of the Jobs performed by OP
Date complainant No. 1
20.1.2016 Re-demonstration Features re-demonstrated
8.2.2016 Checking of Checked on load and appliance was
appliance found normal
25.2.2016 Re-inspection Checked on load and appliance was
found working normal
22.3.2016 Water inlet Cleaned water inlet filter and the
filter problem appliance was found working normal
2.4.2016 Courtesy visit Checked and found working normal
7. There is neither any problem with the spinning process of the appliance nor the opposite party had received any alleged complaint from the complainant. It is also averred that the opposite party No. 1 had manufactured one tub in Aqua washing machine. The same tub is initially completion washing process of the loaded clothes and subsequently the same tub is spinning and rinsing soap as well as water from the clothes. It is further averred that the alleged legal notice dated 4.4.2016 was served upon the opposite party No. 1 with inordinate delay and tracking report obtained from the website of Indian Post qua the alleged notice. Reply dated 2.5.2016 was sent to the counsel for the complainant through registered post. It is further averred that neither the appliance is suffering from the problem nor was any attempt made to remove the defect. There is no refusal on the part of the opposite party in rendering after sales services to the complainant and finally prayed for the dismissal of the complaint.
8. The opposite party No. 2 also filed separate written version taking preliminary objections on the ground of locus standi, jurisdiction, misuse of process of law, complaint is barred by limitation and it is not verified in accordance with law.
9. On merits, it is pleaded that opposite party No. 2 only sold the said washing machine to the complainant. If any fault comes in the said washing machine, then it will be removed by the opposite party No. 1 as opposite party No. 2 is only a dealer of the opposite party No. 1. The opposite party No. 2 has denied the other allegations of the complainant and prayed for the dismissal of the complaint.
10. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of invoice Ex.C-2, copy of legal notice Ex.C-3, postal receipts Ex.C-4 to Ex.C-6, copies of messages Ex.C-7 to Ex.C-18, affidavit of Sumit Kumar Ex.C-19 and closed the evidence.
11. In order to rebut the evidence of the complainant the opposite party No. 1 tendered in evidence affidavit of Anil Kumar Johari Executive Taxation Ex.OP-1/1, copies of documents Ex.OP-1/2 to Ex.OP-1/12 and closed the evidence. Opposite party No. 2 tendered in evidence affidavit of Suresh Kumar Ex.OP-2/1 and closed the evidence.
12. We have heard the learned counsel for the parties and have gone through the record on the file.
13. The point is to be determined whether the washing machine in question is having manufacturing defect and therefore it is liable to be replaced with a new one or to refund the price of the said machine alongwith interest. In order to prove that the said washing machine has a manufacturing defect, the complainant has placed on record his affidavit Ex.C-1 wherein the complainant has reiterated his case as mentioned in the complaint. Apart from his affidavit the complainant has placed on record invoice Ex.C-2 indicating the purchase of the washing machine from opposite party No. 2 for a sum of Rs. 18,000/- and another affidavit of Sumit Kumar Ex.C-19. The complainant has also tendered into evidence copies of e-mail/SMS messages Ex.C-7 to Ex.C-18. On the basis of the above said evidence, the learned counsel for the complainant has contended that the washing machine in question is having a manufacturing defect and therefore the same is liable to be replaced with a new one or the opposite parties may be directed to refund the price of the said washing machine alongwith interest and compensation.
14. On the other hand, the opposite party No. 1 in their written version has specifically mentioned that the request of the complainant made on 20.1.2016, 8.2.2016, 25.2.2016, 22.3.2016 and 2.4.2016 were duly attended by their technicians and there was neither any problem with the spinning process. Even, it is mentioned that there is no refusal on the part of the opposite party No. 1 in rendering after sale services to the complainant. The opposite party has also submitted that the complainant has miserably failed to prove the manufacturing defect as no report of any expert has been placed on record. The learned counsel further contended that they moved an application for inspection of the washing machine to this Forum and the same was allowed and the inspection report dated 27.1.2017 was tendered by the Senior Technician and it was held that the washing machine is working normal and it is not suffering from any manufacturing defect. Thus, it was contended that there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
15. There is no dispute that the complainant has purchased the washing machine in question from the opposite party No. 2 for Rs. 18,000/- vide invoice No. 1296 dated 20.11.2015. The opposite party No. 1 IFB Industries is the manufacturer of the said washing machine. It is also relevant to refer warranty terms placed on record by the opposite party Ex.OP-1/2 which reads as.-
“IFB Industries Ltd. (“The Company”) warrants to the original domestic purchaser of this washing machine (“Appliance”) that it is free defects in workmanship and materials. During 24 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/companies authorized service centre nearest to the place where the appliance is installed. This warranty is subject to limitations of warranty.”
16. Perusal of the same shows that there is a warranty of 24 months. The said washing machine is purchased on 20.11.2015, therefore, warranty will expire on 19.11.2017. Hence it is held that the complainant has approached the opposite party within the warranty period.
17. The onus to prove that the washing machine in question is having a manufacturing defect was upon the complainant. It is admitted fact that the complainant has not placed on record any expert report or has led cogent and plausible evidence to show that the washing machine in question is having manufacturing defect and it is beyond repairable. Even, the complainant has not placed on record any job card or service details to indicate that the said machine is beyond repairable.
18. On the other hand, the opposite party have placed on record copies of job cards Ex.OP-1/3 to Ex.OP-1/7 and Ex.OP-1/12. The said job cards shows that the opposite party attended the complaints of the complainant on the different dates and found the machine normal.
19. In case Sushila Automobiles Versus Dr. Birendra Narain and Ors. 3 (2010) CPJ-130 (NC) wherein it was observed as.-
“At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential in put. The Hon'ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in his backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car has been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party- manufacturing company, it will not by itself amount manufacturing defect.”
20. Further in case Jose Philip Mampilli Versus Premier Automobiles Ltd. and Another, I (2004) CLT-855 the principle of law laid down was to the effect that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced under warranty.
21. On the basis of the above discussion and citations as referred to above, this Forum is of the view that the complainant has failed to prove manufacturing defect, therefore, the opposite parties are not under obligation to replace the said washing machine in question or to refund the price of the same.
22. Now the next question arises whether the said washing machine is liable to be repaired and to make it in a working condition free from any defect. There is no dispute that the complaint is filed within the warranty period. The complainant has specifically alleged that the said washing machine has not been in working condition due to spinning problem. The inspection report placed on record by the opposite party shows that spinning of the appliance was working in the satisfactory condition and this report is of dated 27.1.2017. The complainant has filed objections to the said report alongwith job card dated 8.2.2017 i.e after the inspection report. In the objection application it is pleaded by the complainant that in the month of February 2017 problem again arisen and then he immediately informed the officials/officers of the opposite party No. 1. He further submitted that the washing machine is still not working and the inspection report was prepared falsely. Perusal of the job card dated 8.2.2017 shows that in the column defective parts it is clearly mentioned that “spinning problem checking 3 to 4 times.” This document has not been rebutted by the opposite party. Therefore, value of this document cannot be brushed aside. Therefore, this Forum is of the view that the machine is still not in working condition.
23. In case II (2016) CPJ-19 (NC) Negi Sign Systems and Suppliers Company Versus Rijulize Jacob, printer was purchased by the complainant and the machine was not functioning properly. District Forum directed to rectify the defect without any service charges. On filing appeal Hon'ble State Commission directed refund of purchase price. However, the Hon'ble National Commission held that since no technical evidence was produced by the complainant to prove manufacturing defect and if only a part of the printer was defected then complainant was entitled to replacement of that part and not to refund of the price thereof.
24. As a result of the above discussion, the present complaint is partly accepted to the extent that the opposite parties are directed to repair the washing machine in question of the complainant and to make it in working condition within the period of 45 days from the date of the receipt of the copy of this order. If they found that they cannot be made it in working condition and it is beyond repair then the opposite parties are directed to replace the defective parts with a new one. The opposite parties are also directed to pay Rs. 2,000/- to the complainant as compensation for harassment and mental tension and Rs. 1,100/- as litigation expenses. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
2nb Day of May 2017
(S.K. Goel)
President
(Vandna Sidhu)
Member
(Tejinder Singh Bhangu)
Member
