Dt. of filing – 03/08/2017
Dt. of Judgement – 22/07/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Sri Manas Kumar Bhattacharyya under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) LG Customer Service Centre 2) M/s. Great Eastern Appliances Pvt. Ltd, Branch 21, Hemanta Basu Sarani 3) M/s. Great Eastern Appliances Pvt. Ltd, Regd. Office 15B, Sarat Bose Road and 4) M/s. LG Electronics India Pvt. Ltd alleging deficiency in service on their part.
Case of the Complainant in short is that he purchased a Refrigerator LG 190 Ltr on 20/08/2016 Item Description –LG GL-B201AMHP/190 Ltr REF, Invoice No.HBS/SA/1617/13845 dated 20/8/2016 from Authorised Dealer of LG Electronics India Pvt. Ltd, namely, M/s. Great Eastern Appliances Pvt. Ltd i.e. Opposite Party No.2. After 3 to 4 months the said refrigerator was found defective when the refrigerator was in deep frost there was water seepage under the door of the refrigerator and after the deep frost when the refrigerator is switch on, refrigerator made tremendous noise. So the Complainant contacted Opposite Party No.2 and told his grievance. He also contacted with the Customer Care Division of LG Electronics India Pvt. Ltd i.e. Opposite Party No.1 as asked by Opposite Party No.2. He was informed that technician will visit but no technician came on the said date. However, on 23/05/2017 a technician namely, Sukumar Maity inspected the refrigerator and took photograph of the Refrigerator and told that he will submit report to his office and asked the Complainant to contact the Office. So, Complainant contacted Opposite Party No.1. Thereafter refrigerator was inspected by another technician who told that refrigerator was defective and needed replacement as it was under the warrantee period. But inspite of it, refrigerator was not replaced. So, Complainant approached the Consumer Grievance Cell and ultimately filed this complaint praying for directing the Opposite Parties to refund the purchase price, to pay Rs.19,00,000/- (Rupees Nineteen Lakhs) as compensation as he is a cancer patient and to pay litigation cost of Rs.50,000/-.
Complainant has annexed with the complaint petition, invoice dated 20/8/2016, copy of letter sent to the Complainant by the Consumer Grievance Cell and copy of notices dated 21/7/2017 & 27/7/2017.
Opposite Party No.1 has contested the case by filing written version contending inter alia that after the complaint was lodged by the Complainant, an Executive visited him and found that there was a problem of water leakage and the Executive told the petitioner that the refrigerator needed replacement. There was absolutely no delay in service. When they offered replacement Complainant did not entertain and wanted compensation along with the replacement. Opposite Party No.1 has further stated that they are ready to replace the said machine and has prayed for dismissal of the complaint.
Opposite Party No.2 & 3 also contested the case by filing written version denying the allegation made by the Complainant contending inter alia that as per terms it is the duties of the manufacturer to keep the machine defect free within warranty period and dealer has no role relating to repair or replacement of the refrigerator. So, there has not been any deficiency on the part of the Opposite Party No.2 & 3 and thus they have prayed for dismissal of the complaint against them.
It appears from the record that Opposite Party No.4 namely, M/s. LG Electronics India Pvt. Ltd was subsequently added as Opposite Party No.4 who on entering appearance had opted the written version filed by Opposite Party No.1 as their written version.
During the course of the evidence both the parties adduced their respective evidence followed by filing of questionnaire and reply thereto. Ultimately argument has been advanced by both the parties. It has been argued by the Ld. Advocate appearing on behalf of Opposite Party No.2 & 3 that they are the dealer and as such not liable for any manufacturing defect in the product. According to Ld. Advocate, manufacturing company is only liable if any defect is found.
He has also cited a case law reported in (2000) 10 Supreme Court Cases 654.
Ld. Advocate appearing for the Opposite Party No.1 & 4 has argued that they have always been ready and willing to replace but the Complainant himself did not agree and prayed for refund of the money.
Complainant on the other hand has also cited a judgement passed by the Hon’ble State Commission, West Bengal in first Appeal No. A/574/2015.
So, on consideration of the cases of both the parties, following points require to be determined:-
- Whether there has been any deficiency in service on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for a comprehensive discussion.
In order to substantiate his claim Complainant has filed the invoice showing purchase of the LG Refrigerator in question on 20/8/2016 on payment of Rs.13,700/-. This is also an admitted fact that during the warranty period of the said refrigerator the defect was found of water leakage and the noise generation. Opposite Party No.1 & 4 had admitted in their written version about the technician visiting the Complainant and on inspection of the refrigerator they found the said defect. It is however categorical case of Opposite Party No.1 that they have always been ready and willing to replace the machine but in support of their claim that they tried to replace the machine in time or sent any letter to the Complainant specifying any date for taking such step to replace it, no document has been filed. It is the specific claim of the Complainant that inspite of Opposite Party No.1 inspecting the refrigerator and finding the defect therein, did not take any step for which he had to move before the Consumer Grievance Cell for redressal of his grievance. In such a situation as there is no document that Opposite Party took step to replace the refrigerator in time, Complainant’s claim that the Opposite Parties did not take any strep, cannot be ruled out and thus he is entitled to replacement of the refrigerator. Even though Complainant has prayed for refund of the purchase price and not replacement of refrigerator but the same cannot be allowed keeping in view the terms and condition of the warranty document. A purchaser is entitled to the replacement of the parts as well as the product during the warranty period but refund of the purchase price in effect will be going beyond the terms and condition and thus it cannot be allowed.
It is true that as per the terms and condition dealer is not liable for replacement of the machine but there cannot be any denial or dispute that Opposite Party No.2 & 3 being dealers have certain duties to see that the product shown to the customer for sale is received in good condition. So, they cannot shed their responsibility by saying that only manufacturer is liable especially when they also earn commissions in order to sell the product (reliance is placed in the judgement of Hon’ble State Commission in First Appeal No. A/574/2015 dated 19/5/2015). So, Opposite Party No.2 & 3 are liable to pay compensation to the Complainant along with Opposite Party No.1 & 4.
Coming to the quantum of compensation, Complainant has prayed for huge amount of compensation of Rs.19 lakhs. According to him since he is a Cancer Patient, so he is entitled to the said amount towards harassment and mental agony. But in this context it may be mentioned here that for Rs.19 lakhs detailed evidence is required to assess the compensation. Since the proceeding under the Consumer Protection Act is a summary proceeding, there is absolutely no evidence to assess the compensation to such an extent as prayed by the Complainant. However, there cannot be any doubt that being a Cancer Patient as he had to approach Service Centre repeatedly for removal of the defect but they did not remove the defect or replace the machine in time, he is entitled to compensation. In our view, an amount of Rs.50,000/- will be justified along with the litigation cost of Rs.10,000/-.
Hence,
ORDERED
CC/456/2017 is allowed on contest against Opposite Party No.1 to 4. Opposite Party No. 1 & 4 are directed to replace the refrigerator in question by new refrigerator within a period of two months from the date of this order. Opposite Party No.1 to 4 are jointly and severally directed to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation cost within the aforesaid period of two months in default the entire sum shall carry interest @10% p.a.
