DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Consumer Complaint No.:  CC/152/2017

Date of Institution :    02.11.2017

Date of Decision :    26.08.2019

Deepak Kumar Advocate son of Rajinder Kumar, resident of Bhadaur, Tehsil Tapa, District Barnala.  

...Complainant.

    Versus

1. Jindal TV Centre, Near Moga Co-operative Bank, Grain Market Nihal Singh Wala, District Moga through its Authorized Person. 

2. Parx Care Point, Arya High School Road, Rampura, Tehsil Phul, District Bathinda. 

3. M/s Whirlpool India Ltd., Whirlpool House, Plot No. 40, Sector-44, Gurugram-122002, Haryana.

...Opposite Parties 

Complaint Under Section 12 of Consumer Protection Act, 1986.

Present: Sh. DR Jindal counsel for the complainant.

Sh. Dhiraj Kumar counsel for opposite party No. 1.

Opposite party No. 2 exparte.

Sh. Maninder Singh counsel for opposite party No. 3.  

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

3. Smt. Manisha : Member

(ORDER BY KULJIT SINGH PRESIDENT):

  The complainant namely Deepak Kumar has filed the present complaint under Consumer Protection Act (As amended up to date) against Jindal TV Centre, Nihal Singh Wala, District Moga and others.  (hereinafter referred as opposite parties).  

2. The brief facts of the present complaint as stated by the complainant are that the complainant had purchased one Microwave Model MW 25 BG for a sum of Rs. 9,000/- from the opposite party No. 1 vide invoice No. 2138 MW No. 25 BG and it has warranty of one year. 

3. It is further alleged that after few days of the purchase of the said product it developed defects and started becoming dead after some time and remained so for many hours and later on start functioning and it remained repeating the same problem. The complainant brought the said fact to the notice of opposite party No. 1 but he linger on the matter on one pretext or the other. The complainant lodged complaint No. CH0617013338 on 25.3.2017 and CH0317009292 on 19.6.2017. Then the opposite party No. 1 apprised the complainant to contact with opposite party No. 2 on telephone. On this the complainant contacted the opposite party No. 2 who visited the house of the complainant on 25.5.2017 and checked the said Microwave and told that there is manufacturing defect in the said product which is beyond repair. The complainant requested the opposite party No. 1 to replace the said Microwave with brand new Microwave or to refund the amount of Rs. 9,000/- alongwith costs but opposite party No. 1 gave evasive reply on 26.5.2017 and remained putting of the matter. The complainant again on telephone contacted the opposite party No. 1 but the person attended the call refused to replace the said microwave and return the amount of Rs. 9,000/- on 27.5.2017, which is mal trade practice on its part. Hence the present complaint is filed seeking the following reliefs.-

1) Opposite parties be directed to either replace the said Microwave with brand new product or to refund the amount of Rs. 9,000/-

2) Further, opposite parties be directed to pay Rs. 50,000/- as compensation for mental agony and harassment.

3) Further, opposite parties be directed to pay Rs. 10,000/- on account of litigation expenses. 

4) Any other relief which this Forum deems fit. 

4. Upon the service of notice of this complaint, opposite party No. 1 appeared through counsel and filed written version taking legal objections on the grounds that complaint is not maintainable as the complainant has concealed material facts from this Forum. The complainant has no legal cause of action and locus standi to file the present complaint. Further, there is no allegation of deficiency in service on the part of answering opposite party. Further, intricate questions of law and facts are involved in this case so complainant be advised to file a civil suit. Further, complainant is not a consumer. Further, this Forum has no jurisdiction to entertain and try the present complaint as the complainant has purchased the complainant at Nihal Singh Wala, District Moga. 

5. On merits, it is admitted that the complainant purchased the microwave from a sum of Rs. 9,000/- from the answering opposite party. It is denied that warranty of said microwave was of one year. There is no warranty of the said microwave and if there is warranty then complainant has required to produce the warranty card of the said microwave. Further, there is no defect in the said microwave. Further, this Forum has no jurisdiction to entertain the present complaint. Lastly the opposite party No. 1 prayed that the complaint be dismissed with costs.

6. The opposite party No. 2 initially appeared through their owner but later on none appeared on behalf of opposite party No. 2 so the opposite party No. 2 was proceeded against exparte vide order dated 11.5.2018. 

7. The opposite party No. 3 also filed written reply taking preliminary objection that complaint of the complainant is not maintainable as the product mentioned in the complaint is registered with the name of Vishal Singhla not in the name of the complainant as he claimed in the complaint. As per record of the answering opposite party the purchaser of the microwave in question stands in the name of Vishal Singhla so complainant has no locus standi to file the present complaint. Further, complainant failed to adhere to the terms of the warranty despite giving consent to the same at the time of purchase of microwave. The obligation of the answering opposite party is to set the microwave right and service calls for working of the microwave were properly attended by the service Engineer of the answering opposite party but owner of the product who flatly refused to get it rectify under the terms of warranty and answering opposite party is still rectify any defects in the microwave in question under the terms of warranty agreed upon at the time of purchase.

8. On merits, it is submitted that the microwave has been registered in the name of Vishal Singhla. It is admitted that three calls registered with the authorized service call center of the answering opposite party. The first call No. CH0317009292 was duly attended on 25.3.2017 and our service Engineer visited the premises of Vishal Singhla who flatly refused to get machine inspected and repaired. The second call No. CH0617013338 was generated on 29.6.2017 but the concerned person was not available so service call was closed. The third and last service request No. CH1017010894 was generated on 25.10.2017 in which the complainant only want to know the telephone number of service partner and did not mention to service Engineer regarding any defect in the microwave. The microwave has no manufacturing defect and in fact the service Engineer never inspected the microwave in question. The complainant never wanted to settle the matter and answering opposite party is still ready to repair the microwave under the terms of warranty. Lastly, the opposite party No. 3 also prayed for the dismissal of the present complaint with heavy costs. 

9. The complainant in order to support his complaint has tendered into evidence his own affidavit as Ex.C-1, copy of bill dated 4.3.2017 as Ex.C-2, copy of product analysis report dated 10.4.2019 as Ex.C-3 and closed the evidence. 

10. On the other hand the opposite party No. 3 to support their version have tendered in evidence affidavit of Neeraj Mehta as Ex.OP-3/1 and closed the evidence. 

11. We have heard the learned counsel for the parties and have gone through the record on the file.

12. The first objection raised by the opposite parties is that this Forum has no jurisdiction to try and decide the present complaint as the Microwave was purchased from Nihal Singh Wala, District Moga.  The opposite party No. 3 admitted in their written version that the first call No. CH0317009292 was duly attended by the opposite party on 25.3.2017 and their service Engineer visited the premises of Vishal Singla to whom they alleged to have sold the said microwave but as per bill Ex.C-2 the microwave is in the name of complainant, so the Engineer visited the premises of complainant to repair his microwave. The complainant also deposed in his affidavit Ex.C-1 that the opposite party No. 2 visited the house of the deponent on 25.5.2017 and checked the above microwave set which proved that the opposite party inspected the microwave at the residence of the complainant at Bhadaur on his complaint, which falls within the jurisdiction of this Forum. As the opposite party visited the house of the complainant to repair his microwave, so there is partly cause of action arisen at Bhadaur within the jurisdiction of this Forum, as such under Section 11 (2) (c) of the Consumer Protection Act this Forum has the jurisdiction to decide the present complaint. 

13. In this case grievance of the complainant is that Microwave Model MW 25-BG purchased by him from OP no.1 vide invoice No.2138 (Ex.C-2) on 04.03.2017 became defective after few days as it started becoming dead after some time and remained the same for so many hours. He lodged complaint on 25.03.2017 and 19.06.2017 and also telephonically contacted the opposite party no.2, who visited his house on 25.05.2017 and told that microwave is having manufacturing defect and is beyond repairs. The complainant alleged that on contacting telephonically, official of opposite party no.1 refused to replace the Microwave set. A prayer has been made that opposite parties be directed to replace the Microwave set with new one or to refund an amount of Rs.9000/- with Rs. 50,000/- as compensation and Rs.10,000/- as costs.

14. Purchase of Microwave by complainant is admitted by opposite party no.1 but stated that there is no warranty of the same. There is no defect in the item. It has also been pleaded that this Forum has no jurisdiction to entertain the complaint. Opposite party no.2 is exparte. OP no.3 has taken the plea that item is registered in the name of Vishal Singla not in the name of complainant. Asserted that calls were attended but Sh.Vishal Singla refused to get the machine repaired.

15. From above circumstances, it is clear that machine purchased became defective. The complainant has placed on record bill of purchase showing that microwave in question was purchased by him. Opposite party  no.3 has not placed on record any document showing that it was not purchased by the complainant. When opposite party no.3 has taken plea that machine has been registered in the name of Vishal Singla, it was bounden duty of opposite party no.3 to prove it by producing documentary evidence, which it failed to lead. As such plea that microwave was not purchased by complainant cannot stand in the eyes of law.

16. Occurring of defect in the microwave is not disputed. As such the question for determination is that whether the complainant is entitled for replacement of microwave or refund of the price. No doubt, opposite party no.3 i.e. manufacturer has admitted lodging of complaint on 25.03.2017, 29.06.2017 and 25.10.2017. Opposite party no.3 has also not produced any job sheet showing the report of their employees that complaint ever refused to get the machine repaired. As such this plea is also falsified. Further, the report of Pardeep Singh Mechanic Ex.C-3 also proved that there is manufacturing defect in the microwave as fan of said microwave is out of order due to it get warmer and stop to work and take 3/4 hours to get cool down and start again. This report is not rebutted by the opposite parties by way of any documentary evidence or by way of affidavit or report of any expert.

17. The Hon'ble National Commission, New Delhi in case titled Maruti Suzuki India Ltd. Versus Dr. Koneru Satya Kishre and others reported in 2018 (1) CPJ-157 held as under.-

“A. Consumer Protection Act, 1986 Section 2(1)(f)-Defect in vehicle-Kinds of-Held a defect in a vehicle may come under the category of 'manufacturing defect' or otherwise, a vehicle is said to be suffering from 'defect' if there is any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which was required to be maintained under any law in force.”

This citation of the Hon'ble National Commission, New Delhi is fully applicable to the present facts of the case as in the present matter the opposite parties have given warranty of one year of the microwave in question but within the warranty period it became defective three times which were even admitted by the opposite party No. 3 in their written version which proved that there is defect in quality and standard of the microwave in question and according to the above mentioned citation of the Hon'ble National Commission it is fallen in the category of manufacturing defect. 

18. The Hon'ble Orissa State Commission, Cuttack in case titled Tirupati Motors and others Versus Kanan Kumari Dash reported in 2004(3) CPJ-283 held as under.-

“Consumer Protection Act, 1986 Section 2(1)(g) Motor Vehicles-Inherent manufacturing defects-Found in vehicle within warranty period-Could not be rectified in spite of repairs-Replacement of defective vehicle or refund of price with interest, rightly directed by District Forum- Appeal dismissed.”

This citation is also fully applicable to the present facts of the case as in the present matter also the microwave could not be rectified inspite of best efforts for its repairs so it must be replaced with a new one free of costs. 

19. On many repeated complaints, microwave has not been set right, as such opposite party failed to provide after sale service to their valuable customer, which amounts to deficiency in service and unfair trade practice.

20. Sequel to above discussion, the complaint is accepted against the opposite party No. 3 and opposite party No. 3 is directed to replace the microwave of the complainant with new one free of costs with fresh warranty of six months and to pay Rs. 3,000/- as compensation on account of mental tension and harassment and Rs. 2,000/- as cost of litigation.  Compliance of the order be made within the period of 30 days from the date of the receipt of the copy of this order. Copy of this order be supplied to the parties free of costs. File be consigned to the records after due completion.

  ANNOUNCED IN THE OPEN FORUM:

26th Day of August 2019

 

 

            (Kuljit Singh)

           President

 

           (Tejinder Singh Bhangu)                Member

 

(Manisha)

Member