Delhi

North East

CC/179/2016

HASMUDDIN - Complainant(s)

Versus

Maheshwari co. - Opp.Party(s)

28 Jan 2020

ORDER

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 179/16  

 

In the matter of:

	Hasmuddin S/o islamuddin R/o E-487, Gali No. 21 Old Mustafabad, Delhi-110094.	Complainant
	Versus
1.         2.         3.	Maheshwari & Company A-8, Brajpuri Near P.N.B. ATM Main Wazirabad Road, Opposite Yamuna Vihar, Delhi-110094.   Gunjan Refrigeration Authorized Service Centre, Godrej 62, Vijay Block, Laxmi Nagar, Delhi-110092.   Godrej & Boyce Manufacturing Co. Ltd Godrej Bhawan, Sher Shah Suri Marg, Okhla, New Delhi-110065.	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

13.07.2016 28.01.2020 28.01.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Facts in brief material for disposal of the present complaint are that the complainant’s father in law had purchased a Godrej Refrigerator model 27FMTS manufactured by OP3 from OP1 on 07.04.2012 for a sum of Rs. 17,800/- vide Bill No. 39/ Book No. 1. The said fridge had one year guarantee on it and ten years anti rust warranty and ten years warranty on compressor. The complainant got AMC of the said fridge for next four years done from OP2, Authorized Service Centre (ASC) of OP3 on 16.05.2013 for sum of Rs. 3,483/- just before the expiry of the warranty on the said fridge. However, the door of the fridge got completely rusted after two years of its purchase and complainant lodged a complaint regarding the same with OP2 but the said complaint was not addressed and rather complainant was told that the door cannot be replaced. After few months, an executive of OP2 came to the complainant’s residence and in the jobsheet dated 09.10.2015, on the date of visit 10.10.2015, offered 80% refund of price of fridge and full AMC refund as depreciation offer on behalf of OP2 and OP3. The complainant being assured, handed over the original documents pertaining to the fridge but after a month, he was informed by another executive of OP2 and OP3 that he is entitled to only 35% of the value of fridge and therefore complainant declined to accept the same. The said fridge started giving cooling problem in mid 2016 for which the complainant lodged a complaint but the technician merely filled gas and thereafter for repeated poor performance, changed the compressor too. But the fridge failed to function despite material changes and lastly complainant was informed that a part of the said fridge is no longer manufactured by OP3 and the fridge has been dysfunctional since 23.06.2015. therefore complainant was constrained to file the present complaint before this Forum praying for issuance of direction against the OP to either replace the door of the fridge or refund Rs. 14,000/- towards its cost / price and pay Rs. 20,000/- for mental harassment.

Complainant has attached copy of purchase invoice dated 07.04.2012, copy of AMC receipt No. 33104/ Book No. 663 dated 16.05.2013 w.e.f. 07.04.2013 to 06.04.2017 of Rs. 3,483/- and copy of jobsheet / service order dated 09.10.2015, visit date 10.10.2015 with job description front door and main door rusted and hand written depreciation offer – 80% refund + AMC refund signed by one Mr. Aditya of OP2 on 12.10.2015.

2. Notice was issued to the OPs on 02.08.2016. None appeared on behalf of OP1 and OP2 despite service effected on 20.09.2016 and were therefore proceeded ex-parte vide order dated 06.01.2017. OP3 entered appearance and filed written statement in which it took the preliminary objection of no manufacturing defect in the said fridge and admitted the factum of the purchase of the fridge on 07.04.2012 by complainant’s father in law and AMC effected from 07.04.2013 to 06.04.2017 as also admitted that the following complaints were made by the complainant;

1. Complaint No. 301668 dated 07.06.2013 for cooling problem for which drier was replaced and gas filled;
2. Complaint No. 350673 dated 20.08.2013 for which compressor was replaced and gas filled;
3. Complaint No. 259647 dated 12.06.2014 for cooling problem for which drier and relay were replaced and gas filled;
4. Complaint No. 271719 dated 26.06.2014 for cooling problem for which defrost timer was changed;
5. Complaint No. 193779 dated 23.06.2016 for cooling problem for which compressor was replaced;
6. Complaint No. 205354 dated 09.07.2016 for cooling problem due to defective coil cover insulation.  

 

OP3 however resisted the complaint on grounds that on each of the aforementioned complaints, the redressal was given to the complainant to his satisfaction and that on request of the complainant for correction of rusted door of the fridge within the warranty period, OP3 had offered 35% refund of the value of the said fridge as per the policy for number of years the said fridge had been used but the complainant declined to accept the same. OP3 therefore prayed for dismissal of the complaint.

3. Rejoinder in rebuttal to the defence taken by OP3 was filed by the complainant urging that the said fridge was a defective one in view of its door having got rusted and repeated problem of cooling despite having paid the amount for compressor and AMC but to no avail. The complainant submitted that he declined to accept                   the 35% refund offer since the executives of OP3 had earlier given a deprecation offer of 80% alongwith AMC refund on 10.10.2015 since they admitted that the fridge could not be repaired but with a malafide intent revoke the said offer. Therefore, complainant alleged that OPs have provided deficient service due to which his fridge has completely stopped cooling and is laying useless in his house and therefore prayed for relief claimed.
4. Evidence by way of affidavit was filed by the complainant exhibited documents relied upon by him as Ex-CW1/1 to CW1/4.
5. Evidence by way of affidavit was filed by OP3 through its Branch Commercial Manager in which he deposed that there was no privity of contract between complainant and itself and reiterated the defence taken.
6. Written arguments were filed by both parties urging their respective grievance / defence.

Complainant placed on record copy of the ten years compressor and ten years rust free warranty given by OP3 for the Godrej Fridge Edge Model.

OP3 filed copy of depreciation policy with respect to fridge / AC / Microwave highlighting the 35% refund amount in case of more than three year old fridge as relevant for the present case.

7. We have heard the arguments addressed by both sides and have given our anxious consideration to the documentary evidence placed on record.

It is not in dispute as per complainant’s allegations and OPs own averments in the written statement that the subject fridge went out of order six times in three years between June 2013 to July 2016 for repeated cooling problems for which twice in one year its drier was replaced as also its compressor which was replaced twice in three years. The compressor is a major part of the fridge controlling its entire mechanism. The fact that the major components of the fridge had to be changed frequently establishes that the said fridge suffered from inherent manufacturing defect. The OP has not rebutted or challenged the allegation of rusted door of the said fridge anywhere in its written statement or otherwise and has failed to explain or clarify as to why its executive from OP2, ASC of OP3 had given an offer of 80% refund of the value of the fridge alongwith full AMC refund in October 2015 which later on was revoked by OP3 on grounds that only 35% refund of depreciation was allowed as per company policy. In October 2015, the said fridge was three and a half years old from date of purchase in April 2012. Misguiding the complainant of making a lucrative but invalid offer is unfair trade practice as it amounts to misrepresentation to gullible consumer. When a person purchases a new product, he expects efficient working of the same and not recurring defects and malfunctioning which only harasses the consumer and deprives him of its optimum use. Given the repeated cooling problem and malfunctioning of the fridge as admitted by OP3 with respect to six complaints made with regard thereto, the first one being made after one year of purchase and thereafter repeatedly from August 2013 to July 2016, it is evident that there were serious and inherent manufacturing defects in the fridge which were neither explained to the complainant by OP1 nor OP2 and OP3 which were directly dealing with the repairs and manufacture of the said machine. OP3 is bound by acts of its agent / officers / technicians as vicariously liability for any representation / offer / advice given and therefore OP2 and OP3 cannot be allowed to resile from the same or wriggle out of it especially in the present case where the refund offer was given in writing by their executive on the service order dated 10.10.2015.

8. As regards fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore, considering the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several.

All the OPs have nowhere specifically denied the defects alleged by the complainant in the fridge in question and the defence was limited to wriggling out of its liability. After due appreciation of the facts of the case we are of the considered view that all the OPs are guilty of deficiency of service in having sold an inherently defective manufactured fridge and failed to replace the rusted door despite giving ten years anti rust warranty coupled with the fact that the fridge failed to function despite compressor having been replaced twice in three years which otherwise carry a warranty of ten years speaks volumes of the fridge suffering from serious latent defects which could not be rectified despite repeated repair calls of the complainant answered by OP3. The Hon’ble National Commission in the judgment of RellechBio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

9. After due appreciation of the facts of the case and settle proposition of law, we hold both OPs guilty of deficiency of service and direct them jointly and severally to refund the depreciation cost of the fridge @ 80% as promised by executive of OP2, ASC of OP3 i.e. Rs. 14,240/- alongwith AMC refund of Rs. 3,483/- to be paid by OP2 to the complainant. We further direct all OPs jointly and severally to pay compensation of Rs. 3,000/- towards mental harassment to the complainant. Let the order be complied with by OPs jointly and severally within 30 days from the date of receipt of copy of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on 28.01.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member