DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 521/2016
Date of Institution : 02.05.2016
Date of Decision : 05.04.2017
Sumit Bansal son of Sh. Sat Pal Bansal resident of Astha Colony, Barnala, District Barnala, # 69.
…Complainant
Versus
1. LG Electronics Private India Limited, New Delhi, A Wing, 3rd Floor, D-3, District Center, New Delhi-110017, Through its Managing Director/Authorized Signatory.
2. Anjali Electronics, Opposite PWD Rest House, Railway Road, Sangrur-148001, Through its Managing Director/Authorized Signatory.
3. Surindera Radio and Watch Company, Sadar Bazaar, Barnala, Through its Managing Director/Authorized Signatory.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Vijay Singla counsel for the complainant.
Sh. Jasvir Singh Sarao counsel for opposite parties No. 1 and 2.
Opposite party No. 3 exparte.
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 namely Sumit Bansal son of Sat Pal Bansal has filed the present complaint under Consumer Protection Act, 1986 (in short the Act) against LG Electronics Private India Ltd. opposite party No. 1, Anjali Electronics, Service Centre opposite party No. 2 and Surindera Radio and Watch Company opposite party No. 3.
2. The brief facts of the present case are that the complainant purchased one refrigerator with its complete accessory from the opposite party No. 3 at Barnala, Punjab vide Bill No. 35025 dated 4.4.2016 by cash payment of Rs. 43,500/- for household purpose. It is further averred that the said refrigerator is manufactured by the opposite party No. 1 and opposite party No. 2 is the service centre of opposite party No. 1 and opposite party No. 3 is the distributor of opposite party No. 1 at District Barnala.
3. It is further pleaded that at the time of purchase of the said refrigerator, it was orally assured by the opposite party No. 3 that the said refrigerator would work efficiently and is having one year guarantee and five years warranty of compressor. They further assured the life long working capacity. It is further pleaded that believing upon the words of opposite party No. 3, the complainant selected the said refrigerator and purchased the same and the bill was issued by the opposite party No. 3 in the name of the complainant. However, no warranty card was issued by the opposite party No. 3 despite demanding it many times. After that the complainant used the said refrigerator only for one day i.e on the day of purchase 4.4.2016.
4. It is alleged that on the next date of purchase i.e on 5.4.2016 a noise was started coming from the refrigerator and door handle was also inoperative. It is alleged that both the defects are on manufacturing type, so the complainant on the same day approached personally to the opposite party No. 3 and informed about the said problems. The opposite party No. 3 assured the complainant that it would be replaced very soon. On assurance the complainant waited for replacement till 7.4.2016 but on 7.4.2016 the complainant informed the opposite party No. 2 about this problem. The complainant also registered a complaint against this problem to Customer Care and the complaint number was RNA 1604070114226. Even, later on the complainant got registered two complaint having registration Nos. RNA 160423098920 and RNA 160411095081. Even, thereafter the complainant approached the opposite party many times to redress his problem but all invain. Hence, it is alleged that there is deficiency in service on the part of the opposite parties and therefore, the complainant has filed the present complaint seeking the following reliefs.-
1) Directions be issued to the opposite parties to change the said refrigerator with a new one or to return the amount paid by the complainant to the tune of Rs. 43,500/- alongwith interest at the rate of 18% per annum from the date of purchase.
2) To pay Rs. 25,000/- as compensation on account of mental torture and harassment.
3) To pay Rs. 5,000/- as litigation expenses.
5. Upon notice of this complaint the opposite parties were duly served but they did not come present, so all the opposite parties were proceeded against exparte. However, later on the opposite parties No. 1 and 2 through Sh. JS Sarao Advocate joined the proceedings at the stage of arguments.
6. In order to prove his case, the complainant has tendered into evidence his own affidavit Ex.C-1, copy of bill Ex.C-2, affidavit of Surinder Pal son of Pritam Singh Ex.C-3 and closed the evidence.
7. We have heard the learned counsel for the parties and have gone through the record on the file.
8. The first controversy is to determine whether the refrigerator in question is having a manufacturing/technical defect and therefore, it is liable to be replaced with a new one or to refund the price of the said refrigerator.
9. In order to prove this factum, the complainant has placed on record his affidavit Ex.C-1 wherein he has stated that he purchased the refrigerator in question from the opposite party No. 3 for Rs. 43,500/-. However, on the next day he found a noise coming from the refrigerator and its door handle was also inoperative. The complainant further stated that both these defects were manufacturing defects and then they approached the opposite party No. 3 who assured that the refrigerator would be replaced by the opposite party but invain. In fact the affidavit Ex.C-1 is on the same lines of complaint. Apart from his affidavit the complainant has placed on record the invoice dated 4.4.2016 showing the purchase of the refrigerator from the opposite party No. 3.
10. The complainant has also placed on file affidavit of Surinder Pal Ex.C-3 who has stated that he is carrying on his business of AC and Refrigerator Repair at Dhanaula Road, Barnala since 2006. In the affidavit the said Surinder Pal further stated that on the complaint of complainant he went to repair LG refrigerator of said Sumit Bansal and on inspection he found that the compressor of the said refrigerator was making much noise due to some manufacturing defect and could not be repaired and the handle of main door thereof was also defective. On the basis of said evidence the learned counsel for the complainant has submitted that the refrigerator in question is having manufacturing defect and therefore, the opposite party may be directed to replace the same with a new one.
11. On the other hand, the counsel for the opposite parties No. 1 and 2 has submitted that the complainant has failed to adduce any expert evidence to prove that the refrigerator in question is having a manufacturing defect and no expert report has been placed on record. Learned counsel further submitted that affidavit of Surinder Pal Ex.C-3 cannot be relied upon as he is not a qualified expert and only a mechanic who can only repair and cannot give his opinion as an expert. Learned counsel further submitted that there was no deficiency in service on the part of the opposite parties.
12. There is no dispute that the complainant has purchased the refrigerator in question vide invoice No. 35025 dated 4.4.2016 for Rs. 43,500/- from opposite party No. 3. It is also not disputed that the said refrigerator is having a warranty of one year from its purchase. Therefore, the complainant has approached the opposite party within the warranty period. The case of the opposite party is that in the absence of any expert evidence, the refrigerator in question cannot come within the parameter of the manufacturing defect. The onus to prove that the product in question is having a manufacturing defect was upon the complainant. No doubt the complainant has placed on
record the affidavit of Surinder Pal Mechanic Ex.C-3 and perusal of the same shows that the said Mechanic found that the compressor of the refrigerator was making noise and the handle of the main door was also defective and the said mechanic came to the conclusion that this is a manufacturing defect.
13. Now the question arises whether the report of this mechanic is binding upon this Forum as an expert opinion.
14. In the case titled as State of Maharashtra Versus Damu s/o Gopinath Shinde and others AIR 2000 SC-1691 it has been laid down by the Hon'ble Apex Court that without examining the expert, no reliance can be placed on an opinion alone. It is further held that mere assertions without mentioning the data or basis is not evidence, even if it comes from an expert. It is further pertinent to mention that the opinion of the private expert tends to lean in favour of the party calling him. In fact the real function of an expert is to put before the Court all the materials altogether with reasons which cause him to come to the conclusion so that the Court may form its own judgment. Moreover, the duty of an expert is to furnish the Court with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of that criteria. Perusal of the evidence on the record shows that the affidavit of the Mechanic Surinder Pal does not mention any basis or criteria for determining of the manufacturing defect. Therefore, the affidavit cannot be relied upon.
15. It is also the case of the complainant that there was a problem of noise and the door handle. The complainant has miserably failed to prove that the above said defects are ranked to the status of the manufacturing defect.
16. Therefore, this Forum is of the view that complainant has since failed to prove manufacturing defect, therefore the opposite parties are not under obligation to replace the said refrigerator in question or to refund the price of the same.
17. Now the next question arises whether the refrigerator in question is liable to be repaired as it is within the warranty period.
18. There is overwhelming evidence that the refrigerator is suffering from noise problem as well as defective door handle. The opposite party has failed to tender any evidence to prove the said defects were earlier removed and fridge was in OK condition.
19. In II (2016) CPJ-46 (Kerala) Quality Machines and Spares and Another Versus Saijumon M., the complainant alleged the manufacturing defect. District Forum allowed the complaint. Hence appeal. It was observed that as per report of the expert only bed of plainer machine suffered from manufacturing defect and consequently got damages. Order of replace whole machinery was unwarranted. The Hon'ble State Commission modified the impugned order and directions were issued to replace the defective bed of plainer. This authority is fully applicable to the present facts of the case.
20. As a result of the above discussion, the present complaint is partly accepted against the opposite parties to the extent that the opposite parties are directed to repair the refrigerator of the complainant within the period of 30 days from the date of the receipt of the copy of this order. If they find that some parts of the refrigerator cannot be made in working condition and it is beyond repair then the opposite parties are directed to replace the said defective parts with the new one. The opposite parties No. 1 to 3 are further directed to pay Rs. 7,000/- to the complainant as compensation for causing mental tension and harassment and Rs. 2,100/- as litigation expenses. This order shall be complied with within 30 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:
5th Day of April 2017
(S.K. Goel)
President
(Vandna Sidhu) Member
(Tejinder Singh Bhangu)
Member
