Orissa

Rayagada

CC/77/2017

Sri Gupteswar Patra - Complainant(s)

Versus

Jagannath Sales - Opp.Party(s)

Self

17 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   77/ 2017.                              Date.       17.     12   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri S.Gupteswar Patra, S/O: S.Shyam Sundar Patra,

C/O: G.Simanchalam, Kasturinagar, Ist.lane,  Po/Dist:    Rayagada, State:  Odisha.   Cell No.8280245466.                                                                                                                                                                                                                                                                                                                                …….Complainant

Vrs.

1.The  Proprietor, Jagannath Sales, Kapilas Road, New Colony, Rayagada, cell No.9427000424.

2.The Manager, L.G.Electronics India Pvt. Ltd., A wiwng, 3^rd. floor, District Centre, Saket, New Delhi.                                                                              .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Self.

For the O.P. No.1:- Set Exparte

For the O.Ps  :- Sri S.K.Mohanty, Advocate, Bhubaneswar.

 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the Refrigerator set a sum of Rs.20,600/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.  1  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No. 1 .  Observing lapses of around 1year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps 1. The action of the O.P No. 1 are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  1  was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Upon  Notice, the O.P No.2   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.2   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.2.   Hence the O.P  No.2 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.P    and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

                Undisputedly the complainant had  purchased  the L.G.Brand Refrigerator on payment of consideration   a sum   for Rs.20,600/- to the  O.P. No.1 (copies of the  Retail invoice No. 3132 Dt.03.07.2016  is in the file which is marked as Annexure-I).

                The main grievance of the complainant  is that   the above set is giving  various problems  such as  some machineries  found  defective,  cooling problem   within  warranty period.  inter alia   said  set is not at all in working condition  totally damaged. The  complainant  in their petition  mentioned that  he has orally  complained   to the  O.P. No.1`and Service centre of the O.P. No.2  inter alia  handed over the same to the service centre for   running  perfect condition.  Inspite of repairing the set  it is not at all in working  condition. So the  complainant  had requested    the O.Ps   to replace or refund purchase  price of the above set but the O.Ps  have     turned deaf ear.  Hence this C.C. case.

                The O.P. No.2 in their written version contended that  the complainant has not approached any of   the  authorized service centre of the O.P. No.2.  Further the complainant has not provided any evidence  regarding manufacturing defects in the product.  It is therefore   clearly established that the complainant has provided false information in the complaint to  mislead the  forum and to unnecessarily harass the  O.P. No.2 by filing this case. Again the O.P. No.2 contended that  the product  in dispute was l under warranty and the  complainant  can approach the  No.2 or any of   its authorized service centre  within the warranty period and submit the product in  connection with any  defects in the product.   The O.P. No.2 will duly  carry out necessary technical examination of the product for ascertaining defects in the product and inform the  complainant regarding any defects in  the  product and whether the same can be   repaired  under the warranty  terms and conditions applicable to the product. The  forum  may be directed to the complainant to approach the O.P. No.2’s  service  centre  for any assistance  he may  require. The complainant  was filed  on mere apprehension of manufacturing defect in refrigerator, where as  on inspection on Dt. 10.06.2017 in pursuance to complaint lodged by the complainant, it is detected  that the  above set is working  perfectly,  and after through check up technician opined that the set is running OK.  How ever, the complainnt refused to put signature on job card apprehending manufacturing defect in  the above set and the warranty period is on the verge of expiry. The complaint  is  not supported with materials on record and/or opinion of expers, to establish alleged defect in  the above set where as the report of technician discloses that the  above set is running  perfectly. The O.P. No.2 is not having its branch office or head office at Rayagada District . Service is provided through  authorized service centre and nor directly by the manufacturer.

                The O.P. relied  citations in support of their case which are mentioned here under:-

                The claim of the complainant based only on averments made in complaint without any corroborative evidence cannot be allowed  as has been held in  the case titled Sahib Singh Vrs. Sonu, 2006(2) CPC 115 Chd.

Further in the case of   Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”.

                Again 2001(3) CPR 149, SCDRC,Kerala  in the case of Mrs. Jeenifer Alhones Vrs.  M.D M/S. Ind. Auto  and Anr where in the Hon’ble State commission  observed  “Technical  questions like manufacturing defect when pleaded by complaint burden is on him to adduce evidence.”

                Further   2003 NCJ (NC) in the case of Sri Suresh Kumar  Vishwarkarma Vrs.  Maa Koul where in the Hon’ble National Commission observed “ Section 2(1) (f)- defect- No evidence of defect in  computer- Held defect not proved.

                Again 2005(1) CPR-95 Rajesh Kumar Yadav Vrs. Agarwal Automobiles and Anr. Where the commission   observed  where in  vehicle was purchased in July, 1997 and complaint alleging   defect in it was  filed in May, 2002 and no technical evidence was produced to substantive the contentions, complainant could not be said to have proved his case.

                Further  V-VI-1994 (2) CPR-185, SCDRC, West Bengal in the case of Tapan Kumar Chakrabaorty Vrs.  M/S. Expo Machinery Ltd. Where in the Hon’ble State Commission observed  “Merely because  some parts    had to be replaced during repair carried out by manufacturer in the  above set it does not give right to complainant to have replacement  of  freeze by a new one.

                Again in the case of K.L.Arora Vrs. Groovy Communications 2002(3) CPR 92 (NC) where in the Hon ‘ble National Commission  observed  “for the necessity of expert evidence to prove  the submissions of manufacturing defects in the  goods  made in the complaint.

                Further  in the case of Videocon International Ltd. Vrs. K.Viyjaayan & othrs  1999(1) CPR-20 wherein   the hon’ble commission  observed  “That for replacement of product the defect must be manufacturing   and for proving manufacturing  defects expert report  is essential.”

                Again   in the case of Sterocraft Vrs. Monotype India Ltd, New Delhi 2000 NCJ (SC) 59 where in the Hon’ble Supreme Court observed “ When the terms of warranty does not cover refund or replacement then  consumer can not claim either replacement or refund  during  or after  the lapse of warranty  period.  The consumer can only  claim repairing  of the product if permissible under the terms of service contract or warranty.

                This forum  observed there is no iota of evidence regarding the  complaints made  to the service centre  from time to time for rectification of the above set  filed by the complainant before the forum.  If he found  some  defects in the above set  he could have lodged a complaint to the service centre of the O.Ps and it is always open to  the  customers.  Had there been some mischief or malafied  on the part of the service centre officials of the  O.Ps  he should intimate the same to the O.P No.2(manufacturer) immediately through E-Mail.

For   better appreciation   this  forum   relied citations which are mentioned here.

it is settled proposition of law as held in the case of Ravneet Singh BaggaVrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bona  fide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service in the case in hand the complainant has failed to prove any  deficiency in service on the part of the O.Ps.

Again in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

Further in the case of Sandeep BhallaVrs.  Ashoka Electronics Pvt. Ltd.  IV(2011) CPJ 138(NC). The Ho’ble National Commission held that, if any product works smoothly 7-8 months  then it can not held to  be  defective. 

The O.P. No. 2  vehemently argued that in this case there is no defect in the  above set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.2 within  warranty period    and to secure the unlawful gains from the O.Ps.

Further the  O.P. No.2 in their written version contended that the complaint  is not maintainable

Admittedly the  purchase of the above  set   by the complainant is not denied.  The O.Ps have given an undertaking in the warranty card  that they are  ready to  give the free  service as per the conditions of the warranty given to the said  set.  The complainant submitted that  as  per the  warranty condition  he approached  from pillar to post but the complainant has   not get any  fruitful  result  till  date from any   the  O.Ps.

It is well settled principle of law that  no consumer will make any such complaint if there is no such deficiency. Hence the action of the O.Ps for not giving the required service  to the complainant is a deficiency in service  on the part of the O.Ps.

The main question  before  us is that, whether the  O.Ps   substantiated the allegation with  sufficient materials and documentary  prove or it is a vague allegation  to avoid the repair.

In view of the allegation of the complainant the O.Ps Service centre  did not attend to repair of   the  above set  inspite  of several request by the complainant . it is  the duty of the O.Ps to repudiate the allegation with reliable documentary evidence. The O.Ps did not produce any  srap  of paper  to establish that the mechanic   or technician  of the O.P.  has  attended  for service of the above set after  receipt of the complaint from the  complainant on DT. 10.06.2017 .   It is   the duty of the O.Ps  to obtain the signature  of  complainant or any  paper available  during check and repair.  In the check report prepared   by the    technician or mechanic of the O.Ps.it is also proper procedure to obtain  a certificate  satisfaction  from the complainant  after checking of the  above set.

But the O.Ps had not filed any such document to established that the mechanic has attended  to repair the above set so the  stand  taken by  the O.P. No.2  is very  hard to believe.   The complainant  as a consumer had every right to got proper and prompt service from the O.Ps. In our opinion the O.Ps. should  have immediate  repaired the above set    since the  Ist.  Priority  of the  complaint is to get the benefit of the   above set     which he had purchased by paying a lot  of  money.

The  above set  had been purchased by the complainant on Dt. 03.7.2016  and have  1(one) years warranty and becomes non function able with  in  one year of the purchase.

For better appreciation further  this forum relied citation which  is mentioned below.

   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.                  

O R D E R

                In  resultant the complaint petition  stands  disposed off on contest against the O.Ps. 

The O.P No. 2 (Manufacturer)  is  directed to remove all  the defects  of the above  set including  replacement of defective parts if any free of cost enabling the complainant to use the same in perfect running condition  if the complainant  approached  the O.Ps  to rectify the defect of his   set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said   set with full satisfaction of the complainant  inter alia to pay Rs.1,500/-   towards cost of litigation and compensation.

The O.P. No.1 is directed to refer the matter to the O.P. No.2 for early compliance of the above order.

                Dictated and corrected by me.

                Pronounced in the open forum on     17    ^th.     .day  of    December, 2018.

MEMBER                               MEMBER                                                       PRESIDENT